Kvello v. City of Lisbon ( 1917 )

Bruce, Ch. J.

This is an action in equity to restrain the levying, spreading upon the records, and collection of a special assessment in the city of Lisbon, North Dakota, and this opinion is written after a rehearing. The improvement involved is a standpipe which is to take the place of a water tank, and is to be used for the purposes of fire protection. The lower court held all the proceedings regular and valid, and in addition found the plaintiff guilty of laches. Plaintiff' has appealed and has asked for a trial de novo.

The first point raised by plaintiff and appellant is that the city council lacked jurisdiction because it never created a waterworks,district as required by § 3698 of the Compiled Laws of 1913. Section 3698 provides that “any city shall have power to create sewer, paving and water main-districts and waterworks districts, for the purpose-of constructing a waterworks system, including the construction and erection of a pumping station, settling basins, filtration plant, standpipes and water towers, reservoirs and other contrivances and structures-necessary for a complete waterworks system, etc.” Section 3701 provides that “such water-main districts and waterworks districts, etc. . . . shall be of such size and number as the city council, after-consultation with the city engineer, shall decide most practicable.” Section 3711 provides: “All special assessments levied under the provisions of this article shall constitute a fund for the payment of the cost of the improvement for the payment of which they are levied, and shall be diverted to no other purpose, and those for the payment of sewer-improvement shall be designated respectively ‘sewer district no. . . . fund,’ and such funds shall be numbered according to the number of' the sewer district in which it is raised. Those collected for paving improvements shall be designated as ‘paving district no. . . . fund,’ and such fund shall be numbered according to the paving district in which it is raised; and those levied for the payment of water mains shall be known as ‘water-main district no. . . . fund,’ and such fund shall be numbered according to the number of the water-main district in which it is raised, those levied for waterworks improvements ■shall be designated as ‘waterworks district no. . . . fund,’ and such fund shall be numbered according to the number of the waterworks district; etc.”

It would appear that this objection is well taken. Prior to the passage of chapter 74 of the Session Laws of 1913, there was no law in North Dakota whereby a waterworks system or a standpipe could be •constructed by a city and paid by a special assessment. See Price v. Fargo, 24 N. D. 440, 139 N. W. 1054. And it was only after the amendment referred to that assessments for such purposes could be levied. Prerequisite to the levying of such assessment was the creation •of a waterworks district. It is true that before such time water-main districts could be created and water mains could be paid for by special assessments, and that such a district was created in the city of Lisbon prior to the present improvement. It does not, however, necessarily follow that water-main and waterworks districts are the same and •cover the same territory. We have held that the fundamental requirements of the special assessment laws must be complied with. Robertson Lumber Co. v. Grand Forks, 27 N. D. 556, 147 N. W. 249, and it seems to be a general holding that the formation of the improvement district is the foundation for all subsequent proceedings. McCaffrey v. Omaha, 91 Neb. 184, 135 N. W. 552; Whitney v. Hudson, 69 Mich. 189, 37 N. W. 184.

Not only is this the case, but no resolution was adopted declaring that the work was necessary to be done, and which resolution is required by § 3704 of the Compiled Laws of 1913. Section 3704 provides .among other things that “after the plans, specifications and estimates . . . shall have been filed . . . and approved as provided in the preceding section the city council shall by resolution declare such work ■or improvement . . . necessary to be done, such resolution shall refer intelligently to the plans, specifications and estimates therefor, and shall be published twice. ... If the owners of a majority of the property liable to be specially assessed for such proposed improvement shall not, within fifteen days . . . file with the city auditor a written protest against such improvement, then tbe majority of such owners shall be deemed to have consented thereto, etc.”

It is true that on June the 2d a resolution and ordinance was adopted ■directing the city engineer to prepare plans and specifications, and that said resolution contained the following words: “Whereas it appears to the city council that it is absolutely necessary that something be done to provide adequate water supply to afford fire protection.” It is also true that later and on the 16th day of June, 1913, another resolution was passed and was published twice, on the 19th and 26th days of June, to the effect that “whereas the plans, specifications, and estimates are now on file and have been approved for the construction of a standpipe, now, therefore, be it resolved by the city of Lisbon, state of North Dakota, that the standpipe be and the same hereby is ordered and declared to be constructed.” These resolutions, however, fall far short of a compliance with the statute. To say that the construction of a standpipe is necessary is not the same thing as saying that the construction of a standpipe, according to certain plans and specifications, is necessary, nor is a direction or order to construct a standpipe, according to such plans, a finding of necessity. The statute requires not merely a resolution of necessity, but a resolution that shall refer intelligently to the plans and specifications. Its purpose is clear and is twofold. It is that the city officers shall themselves carefully -consider the question of necessity as applied to the plans, and themselves be confronted with the determination of the question of actual necessity as well as of desirability. It means that they shall really consider the matter, and from every standpoint. The statute also purposes that the property owner may have the plans and specifications before him, or a proper reference thereto, in order that he may determine for himself whether in reason he should protest against the improvement. Whittaker v. Deadwood, 23 S. D. 538, 139 Am. St. Rep. 1076, 122 N. W. 593. These requirements are mandatory, and the property owner is entitled to a reasonable compliance therewith. Robertson Lumber Co. v. Grand Forks, 21 N. D. 556, 141 N. W. 249; Morrison v. Chicago, 142 Ill. 660, 32 N. E. 172.

But this is not all. Section 3126 of the Compiled Laws of 1913 provides for a personal inspection of all of the lots, and the determination from such inspection of the particular lots which will be benefited and the amount to which such lots will be so benefited. It also provides that the Commission shall “assess against such of said lots and parcels of land such sum not exceeding such benefits as shall be necesary to pay its just proportion of the total cost of such work.”

All that the chairman of the Commission can be made to testify to' is that they spent one or two hours in examining the lots; that they took an automobile and went from one part of the city to another, and that some of them may have gotten out; that he couldn’t tell whether he got out or not and looked at any of them; that to arrive at the amount necessary to be raised, they ascertained the cost of the standpipe, and then took that amount and divided it by the number of lots; that they didn’t discriminate in any way as to the benefit that might accrue to one lot and the benefit that might accrue to some other lot; that they merely took as a basis lots that were within 1,200 feet of hydrants, as they understood that the city hose would cover 1,200 feet; and “that they simply established an arbitrary standard of their own by dividing the total cost of the standpipe by the number of lots within the radius they purported to assess.”

We have repeatedly held that the matter of assessing property cannot be trifled with, and that owners thereof are entitled to at least the expenditure of some time on the part of the Commission. Robertson Lumber Co. v. Grand Forks, supra; McKenzie v. Mandan, 27 N. D. 546, 147 N. W. 808.

Nor do we believe that the fact that the plaintiff lived within 400* ■ feet of the standpipe and did not complain until after the standpipe was completed estop the plaintiff from proceeding in this case. The notice of special assessment was dated May 28, 1914, and called for a hearing on June 15, 1914. The present action was commenced on July 17, 1914. Plaintiff testified that, until he saw the notice of special assessment on May 28, 1914, he had no notice that the work was to be paid for by special assessment and that such notice was not filed with the city auditor until August 11, 1914. The defects, too, were fundamental and the failure to sooner protest was not fatal. Robertson Lumber Co. v. Grand Forks, supra; Keese v. Denver, 10 Colo. 112, 15 Pac. 825; Chicago v. Wright, 32 Ill. 192.

The next question to be determined is whether the injunction prayed for by the petitioner should be summarily issued and the case thus disposed of, or whether an opportunity can be afforded for the correction of the errors complained of and for a new assessment. If the opportunity may be afforded it must be under the provisions of either §§ 3713, 3714, or 3715 of the Compiled Laws of 1913. A reading of §§ 3714 and 3715 leads us to believe that they uere not intended to cover jurisdictional defects such as we have held to have existed in the failure to create the waterworks district and to adopt and publish the resolution of necessity, though they would relate to the defects in the method of the assessment. Section 3713, however, is much more comprehensive. It provides that “in all cases where any assessment, or any part thereof, as to any lot, lots or parcels of land assessed under any of the provisions of this article, or of any law of any city prior to this article, for any cause whatever, whether jurisdictional or otherwise, shall be set aside, or declared void by any court, the city council shall, without unnecessary delay cause a reassessment or new assessment to defray the expense of such improvement to be made, whether such improvement was made under this article or under any law of any city prior to this article, and such reassessment or new assessment shall be made as nearly as may be, as herein provided for making the assessment therefor in the first instance; and may bear interest from the date of the approval of such assessment so set aside, and when the same shall have been made and confirmed by the city council, it shall be enforced and collected in the same manner that other assessments are enforced and collected under this article, and in all eases where judgment shall hereafter be refused or denied by any court for the collection or enforcement of any special assessment, or where any court shall hereafter set aside or declare void any assessment upon any lot or parcel of land for any cause, the said lot or parcel of land may be reassessed or newly assessed from time to time, until each separate lot, piece or parcel of land has paid its proportionate part of the costs and expenses of such improvement, as near as may be; provided, that when any special assessment shall be declared void, or set aside by judgment of the supreme court, for a cause affecting other like assessments, all assessments so affected may be vacated by resolution of the city council, and thereupon a reassessment of the property affected thereby shall be made as herein provided, and may bear interest as hereinbefore provided.”

In the case of Wiese v. South Omaha, 100 Neb. 492, 160 N. W. 890, a very similar statute was passed upon. That statute, being § 4748 of the Revised Statutes of Nebraska of 1913, provided that “whenever an assessment for any of the improvements provided for herein or for any local improvement which has been heretofore made, or which hereafter may be made, is void or has been, or may be declared void, or its enforcement under the laws of this state or the charters of cities of this class, is not possible or is refused, or for any other cause the same is void or may be declared void by any court, either directly or by virtue of any decision of such court, the mayor and council of such city shall, by ordinance, order and make a new assessment or reassessment upon the lots, blocks, land and parcels of lands which have been or will be benefited by such local improvements, it being the true intent and meaning of this chapter to make the cost and expense of all local improvements payable by the real estate benefited to the extent of the improvements by the same, either by reason of the first assessment or reassessment therefor, and notwithstanding the proceedings of the mayor and council, or of any of the officers of the city, may be found to be defective, irregular or void, including among other things the want of jurisdiction, and the city council or such officer to proceed in the premises, as well as other defects, except where such assessments may be made for an unauthorized purpose, or there is an entire and complete want of authority in the council to proceed in the premises.”

It only differed from the statute of North Dakota in its clear expression of intention, and its mandatory provisions were practically identical. The court in its opinion called attention to the fact that the assessment in question had, in a prior proceeding, been declared void on the ground that the city council was without jurisdiction to malee the assessment, since the ordinance creating the improvement district failed to properly define the limits of the district. See Wiese v. South Omaha, 85 Neb. 844, 124 N. W. 470.

It then held that it was competent under the provisions of § 4748, Revised Stat. of 1913, just quoted for the city council to pass a new ordinance for the creation of the improvement district, and still another for the assessment of the benefits. In passing upon this question it said:

“Plaintiffs contend that the section quoted does not authorize a reassessment under the circumstances of this case. Does the statute authorize a reassessment where the original assessment has been declared void on the ground that the ordinance creating the improvement district failed to properly define the limits thereof ? It is the contention of plaintiffs that in such a case there is an ‘entire and complete want of authority in the city council to'proceed in the premises,’ and for that reason a reassessment was not authorized. In the former opinion it was held that failure of the ordinance to properly define the limits of the district rendered the assessment void for want of jurisdiction. In one sense want of jurisdiction is ‘want of authority in the city council to proceed in the premises.’ The statute, however, provides that reassessments may be made though the proceedings may be found to be void for ‘the want of jurisdiction.’ Without attempting a definition, it may be said that the city council did not proceed with ‘entire and complete want of authority’ merely because the ordinance creating the improvement district did not properly define the limits thereof. The proceedings of the city council were based upon a petition filed with the city clerk which was signed by owners representing a majority of the taxable feet front upon the street to be improved. The city council did not proceed with ‘entire and complete want of authority’ within the meaning of that term as used in the section quoted.

“Is the reassessment statute unconstitutional as contended by plaintiffs? The power of the legislature to authorize a reassessment in case the first assessment has been declared invalid for failure to comply with provisions which the legislature might in the first instance have dispensed tuith is generally upheld [citing cases]. The first assessment was declared void for failure of the ordinance creating the improvement district to properly define its limits. The legislature might have authorized the city council on its own initiative to improve the street, and, after the improvement had teen completed, to create an improvement district and provide for the assessment of the property benefited, if notice thereof and opportunity were given to property owners to be heard upon the assessment.”

Again, in the case of Thayer Lumber Co. v. Muskegon, 157 Mich. 424, 122 N. W. 189, the court passed upon the question of reassessment where the original assessment was held void because the resolution adopted by the said city council did not designate the territory to be covered by tbe sewer district, and because tbe published notice of the council meeting was insufficient. In doing this it construed § 15 of article 2 of the city charter, which provided that “whenever any special assessment shall, in the opinion of the council, be invalid by reason of any irregularity and informality in the proceedings, and if any court of competent jurisdiction shall adjudge such assessment to be illegal, . . . the council shall . . . have power to cause a new assessment to 'be made.”

It held that the council might cause a new assessment to be made, and it sustained such an assessment, although it was not only necessary to create the improvement district, but to find the necessity for the tuorlc after most of it had been done.

This rule was also applied in Upington v. Oviatt, 24 Ohio St. 232, and as to the whole assessment. Where “the first assessment was made during the progress of the work, and was intended to cover only a part of the expense of the improvement, the second assessment ordinance made no reference to the first, but it, together with the first, was intended to cover the entire cost. At the time it was made, however, the improvement had not been completed. A substantial part of the work at the time the suit was commenced, and at the time of the trial in the district court, still remains unperformed.”

Again, in the case of Keese v. Denver, 10 Colo. 112, 15 Pac. 825, and where the improvement, a sewer, had been entirely completed at the time of the bringing of the action, the court said: “It is urged by counsel for appellees that plaintiffs are estopped from now questioning the legality of the assessment, because they allowed the work to progress to completion without making any objection. The legality of the assessment is attacked upon the ground that the city council was not authorized to cause the sewer to be constructed, and hence not authorized to levy an assessment to pay for its construction. The objection goes to the origin of the proceedings, and is jurisdictional. The principles of estoppel have no application to the facts in this case. Chicago v. Wright, 32 Ill. 192; Re Sharp, 56 N. Y. 256, 15 Am. Rep. 415.”

Again, in the case of Enid v. Gensman, — Okla. —, 158 Pac. 377, although the court held that in the particular case the statutory provisions had not been complied with, it specifically upheld the validity of §§ 576 and 644 of the Revised Laws of Oklahoma, 1910, which provided that:

Section 576: “In case the corporate authorities of any city have •attempted to levy an assessment for improvements, which assessment may have been informal, illegal or void for want of sufficient authority or other cause, the council of such city shall reassess any such assessment in the manner provided in this chapter.”

Section 644: “In the event that any such assessment shall be found to be invalid or insufficient, in whole or in part, for any reason whatsoever, the city council may at any. time in the manner provided for levying an original assessment proceed to cause a new assessment to be made and levied which shall have like force and effect as an original •assessment.”

These sections are almost identical in language with the North Dakota provisions, which expressly provide that the new assessment shall be “as nearly as may be, as herein provided for making the assessment therefor in the first instance,” and the case is important in that it outlines the procedure to be followed and which must necessarily follow under the statute.

“It will be seen,” says the court, “that the former section provides for making the reassessment in the manner provided in this chapter,” which is the manner provided for levying an original assessment referred to in the latter section.

“It seems clear that levying an original assessment’ does not, in a case of lack of jurisdiction in the first instance, consist alone in the resolution, appointing the appraisers, the reception and consideration •of their report, and the final determination of the apportionment, but consists rather in taking all those requisites and jurisdictional steps which have been omitted, beginning with the resolution of necessity (in a case not initiated by petition), if that resolution has been improperly passed or published. In other words, the municipality is given power to go bach and pide up the thread of its proceedings where ■it has been broleen, and to proceed to the ultimate end of the collection ■of the assessment; but it is not authorized to begin in the middle without •connecting the line of proceedings with the property owner.”

We are satisfied that the procedure in the case at bar is for the city council to “pick up the thread of its proceedings where broken,” establish a waterworks district, pass a resolution of necessity, if they in fact find the improvement to be necessary, publish such resolution, allow the statutory period for hearing objections, make the proper orders if objections are not made or are overruled, and proceed to the ultimate end of the collection of the assessment. In other words, make such reassessment as nearly as may be in the manner provided for making the assessment in the first instance.

We are not unmindful of the Oregon Case of Birnie v. La Grande, 18 Or. 531, 153 Pac. 415, in which it was held that “where a street-improvement assessment was invalid'because the notice thereof to property owners, made a jurisdictional prerequisite by the charter, was defective, no subsequent reassessment of the cost of the improvement under the provisions of the charter was valid. Since the giving of notice in the terms described by the charter, which was the organic law under which the city acted, was a condition precedent to securing jurisdiction to make an improvement and to cure the invalidity in the proceedings, it was necessary that they be had de novo with valid notice and compliance with the charter in all respects to give jurisdiction,” and that the charter contemplated work to be done in the future, and, if the improvement had been already made, it was impossible to make a reassessment in Wee manner for the same purpose.

We realize also the pertinence of the following language used in the case of Murray v. La Grande, 76 Or. 598, 149 Pac. 1020;

“The quasi process in the present instance, by which alone the city could acquire jurisdiction, is the notice described in the quoted provisions of the charter. It is required, among other things, that there shall be contained therein a description of the improvement proposed, the boundaries of the district to be affected or benefited thereby, and the estimated cost thereof. This language plainly contemplates a work to be done in the future. It had no reference to past improvements. It manifestly gives to the property holder who is to be assessed the right to be heard in advance, not only as to the amount of the levy, but also as to the kind of improvement. It is conceded by the answer that this was not done in the first instance. In respect to the final effort to tax the realty of the plaintiffs, the improvement had already been made, whatever its kind or nature; the question about the sort to be adopted had been irrevocably decided; the payment, whether good or bad, was in place,- — all without a previous opportunity for plaintiffs to be heard upon that subject. Confessedly, as disclosed by the answer, this charter right of the taxpayer was utterly ignored in the beginning for want of notice. . . . When the improvement is already made, it is impossible to make a reassessment fin like manner for the same purpose’ as required by the charter. In other words, after the doing of the work, whether good, bad, or indifferent, a situation' is presented to which the present provisions of the La Grande charter cannot be applied. The giving of notice in the terms described by the excerpts of the organic law under which that municipality operates is a condition precedent which must be observed before the city can acquire jurisdiction to make an improvement. The contention of the defendants would make the acquisition of jurisdiction a condition subsequent. The plain logic of their position is that, notwithstanding the provisions of the charter, they may first decide and afterwards hear. No independent or different proceeding is established by the charter for collecting such a tax. It simply provides for a reiteration of the same process, and does not dispense with any of the charter rights reserved to the property holder. The situation is simply one where the water of jurisdiction has run past the mill of opportunity. The time to have asserted the power to reassess was before the right of the taxpayer to be heard on the kind of improvement had been ignored and rendered worthless. If jurisdiction had been acquired regularly at the outset, it would have been permissible as the charter now stands to return and correct errors in the apportionment of the expense by a reassessment. In any case, if the city would retrace its steps for corrective purposes, it must go clear back to where it obtained jurisdiction, to which alone it can tack renewed efforts to tax property. It would have been competent for the legislative power of the town to dispense with all previous notice of intention to install betterments, and to empower the council to call upon the taxpayer for the first time after the work was completed, but it has not done so. By failing to give sufficient previous notice and yet persisting in the prosecution of the work, the city has reversed the chronological order of the process enjoined by its charter.

“The case presented by the defendants is one in which they have decided beforehand against the taxpayer in one of the most important particulars of the assessment scheme. Jurisdictional power cannot, like the phenix, rise from its own ashes; and where the case presented is ■one in which full compliance with the essentials of jurisdiction cannot be had, repetition of the same process will never confer jurisdiction. In short, it appears by the record that, on account of the improvement having been previously made and not still in contemplation, it is impossible for the council, in the language of the charter, to cause u new assessment ‘to be made in like manner for the same purpose.’ ”

We believe, however, that the question is, after all, of legislative intention and of legislative power. We believe, indeed, that the legislature could, in the first instance, have provided for the creation of public improvements by the municipality, and then have provided for the payment for the same by special assessment; provided that their reasonable necessity was shown and the property owners were in fact benefited and had an opportunity to be heard as to the amount of their .assessment, and that such assessment was not in excess of the benefit. This was held in the case of Wiese v. South Omaha, supra. This, in fact, is what § 3713 of the Compiled Laws of 1913 of the state of North Dakota authorizes. It, in fact, provides for the assessment to be made “whether such improvement was made under this, article or under any law.” It uses the words, “was made,” and not, “is made,” or, “is to be made.” The intention is clear, and we believe that .the power ■exists.

There is still another question to be determined, and that is whether the relief prayed for should be confined merely to the plaintiff’s lots, or whether the lots of others similarly situated should also be affected. The action was originally instituted by Alfred M. Kvello “on behalf ■of himself and all others similarly situated who would come in and •contribute to the expense of the action;” and in the complaint was ■contained a full list of all of the other lots affected, a reference thereto throughout, and a prayer for an injunction “from spreading such assessment upon the records of said city or county, and that the treasurer be enjoined from collecting or attempting to collect any of such assessment ,so attempted to be levied upon the said lots or parcels of land so specified in exhibit A.” It is true that later on and on motion of plaintiff, but without any objection on the part of the defendant, the words, “who will come in and contribute to the expense of this action,” were stricken out. This, however, was mere generosity on the part of the plaintiff, and cannot seriously affect the situation. The action was none the less brought on behalf of all of the lot owners mentioned in ■exhibit A.

There is no doubt that this can be done, and that the judgment can be made applicable to and be taken advantage of by such persons. •Section 7406 of the Compiled Laws of 1913 provides: “When the question is one of a common or general interest of many person's, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” This is merely a statement of the general rule, and the general rule is applicable to controversies over special assessments. See Hamilton, Taxn. by Special Assessments, § 805; Phillips, Code PI. § 458; Upington v. Oviatt, 24 Ohio St. 232; 15 Enc. Pl. & Pr. 627; 22 Cyc. 912; 28 Cyc. 1188.

In the case of Keese v. Denver, 10 Colo. 112, 15 Pac. 825, the improvement, a sewer, had been entirely completed at the time of the bringing of the action; and not only was it urged that the plaintiffs were es-topped from questioning the legality of the assessment because they allowed the work to progress to completion without making any objection, but a demurrer was interposed to the complaint on the ground that “there are seven plaintiffs and each has a separate interest in distinct portions of said real estate, and there is no joint interest of any of the plaintiffs in any portion of such real estate, and the same relief is asked for all other persons similarly situated and interested as for themselves.” The court, however, said: “The ruling of the •court below upon the demurrer to the complaint being favorable to .appellants, their appeal does not necessarily require an expression of ■opinion upon that ruling; but as counsel for both appellants and appellees have argued the questions presented by the demurrer at considerable length, we will, without going into a review of the arguments made and authorities relied upon, state our conclusions upon the questions presented. The two grounds of the demurrer may be treated unitedly. Mr. Pomeroy, in his able treatise on Equity Jurisprudence, has collated all the important cases upon the question of equity jurisdiction in cases of this character, and, after an exhaustive review and ■comparison of the cases, has expressed his conclusions, and from which we quote the following: ‘Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized public acts, private tortious acts, invasion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised either on behalf of a numerous body of separate claimants against a single party, or on behalf of a single party against such a numerous body, although there-is no 'common title/ nor 'community of right’ or of 'interest in the subject-matter/ among these individuals, but where there is, and because there is, merely a community of interest among them in the questions of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body. 1 Pom. Eq. Jur. § 269. Equity assumes and exercises jurisdiction in cases of this character in order to prevent a multiplicity of suits. 1 Pom. Eq. Jur. § 260. The rule that one or more plaintiffs may sue for the benefit of all others similarly situated and interested is well settled, and in some states it is held that an allegation of this kind is necessary to confer equity jurisdiction. Bull v. Read, 13 Gratt. 78; Kennedy v. Troy, 14 Hun, 308; Wood v. Draper, 24 Barb. 187; McClung v. Livesay, 7 W. Va. 329. The demurrer was properly overruled.”

It would seem, however, that the decree or judgment could hardly be ''that the treasurer be enjoined from collecting or attempting to collect any of such assessment so attempted to be levied upon said lots or parcels of land so specified in exhibit A,” as is prayed for in the complaint, but should rather be that the treasurer be enjoined from collecting or attempting to collect any of such assessment so attempted to be levied upon said lots or parcels of land so specified in exhibit A and the owners of which come in and accept the benefit of the judgment.

It seems, indeed, quite obvious that a person cannot be compelled to-be a plaintiff in a lawsuit; that is to say, to be made an objector to a special assessment without his consent, and that this consent should in some way or other be obtained, and this even though the party is. specifically named and identified in the complaint. The same rule in this respect, we believe, applies to parties who are specifically named, as to those who are only generally referred to. They should come in. in some way and accept the benefit of the judgment or claim under it-The rule, however, seems to be that “the general averment, descriptive of the persons as a whole, is enough, and the question whether any particular individual is included within it will arise and must be decided upon his application to be admitted as a participant in the suit while in progress or in the relief after judgment. If any opposition is made to his application, the matter will be sent to a master or referee to hear and report, and upon his report the court will make the proper order admitting or rejecting the applicant.” Pom. Remedies & Remedial Rights, §§ 296 — 298; Stevens v. Brooks, 22 Wis. 695 — 706.

The judgment of the District Court is reversed and the cause is remanded, with directions to enter judgment for the plaintiff as prayed for in the complaint, and also for such of the other parties whose names and property are mentioned in the said complaint, and who shall malee application to the court to come under the judgment, and who shall prove themselves entitled thereto. This decree or judgment, however, will be without prejudice to a reassessment under the provisions of § 3713 of the Compiled Laws of 1913, and as outlined in this opinion.