one-half of the property to be assessed therefor not having objected in writing thereto:

'Therefore, be it resolved, that the construction of said sewers as determined in said resolution be, and the same is hereby, ordered."

Thereupon the complainants herein filed their bill of complaint praying for an injunction against the defendants restraining them from enforcing said special assessment. Upon a hearing the injunction was granted, from which decree the defendants appeal.

It is the claim of the complainants that the proceedings of May 18, 1908, and those following that date, by the common council cannot be sustained as a valid reassessment or as a new and original assessment. The learned circuit judge held in part as follows:

"The resolution of May 18, 1908, contains no provision for plats and diagrams of the sewer district, nor for an estimate of the cost of the sewers except by reference to plats, diagrams, and estimates adopted by the council and filed on the 8th day of October, 1906. The resolution of October 8, 1906, and the notice of the hearing of objections given thereunder were particular objects of attack in the former suit and were specifically decreed by the courts to be void and of no effect. Therefore, no part of that resolution can be used for any purpose in the new proceedings, and the plats, diagrams, and estimates which the council then attempted to adopt cannot form any basis for the subsequent actions of the defendants. The mandatory provision of the city charter requiring, plats, diagrams, and estimates of cost to be made and filed before ordering any public improvement' and 'before proceeding to the construction of any sewer,' have not been obeyed. * The validity and binding force of the contract for the construction of these sewers, as between the city of Muskegon and the contractor, cannot and need not be determined in this suit, and no opinion is herein expressed upon that subject. But, as between these parties and so far as it forms the basis of levying a special assessment upon the property of these complainants, such contract was an essential and integral part of the former proceedings of the defendants, and to that extent it was declared void by the decree of this court and the Supreme Court. So far

* *

as this case is concerned, those former proceedings are dead, and it is beyond the power of the defendants to put new life into them or any of them."

In the foregoing conclusions wè think the learned circuit judge was in error. An examination of the opinion in Thayer Lumber Co. v. City of Muskegon, supra, shows that,

"In accordance with the views herein expressed a decree will be made in favor of the complainant and against the defendants, setting aside and holding for naught all of the proceedings heretofore taken, and restraining any further proceedings to levy the special assessment in question upon and against the lands of complainant.'

This conclusion was reached by this court apparently (1) because the resolution adopted by the council of the city of Muskegon on October 8, 1906, did not designate the district to be covered by said Special Sewer District No. 7; and (2) because the published notice of the meeting of the council of November 5, 1906, to consider objections to the proposed improvement was not sufficient. We are unable to discover where any question has heretofore been raised affecting the plats, diagrams, and estimates or the determination of necessity for the sewer. Nor do we think they are subject to any attack. Now, referring to the resolution of May 18th:

(1) It designates the lands to be assessed. Section 3, tit. 11, of the city charter.

(2) It determines the proposed sewer to be a necessary public improvement. Section 3, tit. 11.

(3) It refers to estimates, plats, and diagrams of the work and locality to be improved, adopts them, and orders them to be filed with the city recorder. Section 4, tit. 11.

(4) It determines what portion of the expense shall be borne by special assessment, and what shall be borne by the city. Section 3, tit. 11.

(5) It provides the method of making the said assessment. Section 6, tit. 13.

(6) It provides:

'The said sewers are the same that are covered by a contract heretofore made with William R. Jones and have been partially constructed by him. The route, location, grade, and dimensions of all said sewers are shown by the plats and diagrams herein approved and adopted." Section 7, tit. 13.

(7) It provides for notice, which was given in accordance with section 7, tit. 13; and thereafter, on June 5th, by the resolution above quoted, ordered the sewer to be built.

We are unable to see how the rights of the complainants were in any wise prejudiced by the fact that the sewer had partially been constructed under a contract with Jones prior to this time. See Brevoort v. City of Detroit, 24 Mich. 322. At the time and place set by the council for the hearing of objections the property owners in the special district could have compelled the council to forego making the improvement at their expense if the owners of more than one-half of the property to be assessed therefor should object in writing thereto (section 4, tit. 11). Had this course been taken no special assessment could have been made, and the cost of the sewers already constructed must have been borne by the city at large, if the contract theretofore existing between it and Jones were valid.

Counsel for complainants lay much stress upon the charter provisions with reference to reassessments, which are as follows:

"Whenever any special assessment shall, in the opinion of the council, be invalid by reason of any irregularity or informality in the proceedings, or 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." Section 15, tit. 11.

It is the claim of counsel for the complainants that the words "by reason of any irregularity or informality in the proceedings" should be construed as qualifying the subsequent portion of the phrase "or if any court of competent

jurisdiction shall adjudge such assessment to be illegal." This construction would make the last provision read:

"If any court of competent jurisdiction shall adjudge such assessment to be illegal by reason of any irregularity or informality in the proceedings."

This construction is clearly unwarranted and would exclude a reassessment, if the illegality of the assessment rested upon jurisdictional grounds. The use of the disjunctive "or" shows that there are two distinct classes of cases in which reassessment may be had: First, where, in the opinion of the council, the assessment is invalid by reason of any irregularity or informality in the proceedings; and, second, where any court of competent jurisdiction shall adjudge such assessment to be illegal. In the last case it is not necessary to add the words "for any reason;" the language itself is unqualified.

The assessment in the case at bar was in the former adjudication held to be illegal. It was therefore a proper case for reassessment. See Schintgen v. City of La Crosse, 117 Wis. 158 (94 N. W. 84). We do not think that the failure of the council to set up in its resolution the fact that it was a reassessment is fatal. It did, by reference in the resolution to the former plans and specifications and the contract with Jones, clearly indicate that by the proceedings then undertaken it sought to make valid, by due notice and proper description, the assessment which had by this court been declared invalid. The fact that by the terms of the resolution the special assessment was reduced from 75 per cent. to 50 per cent. is a matter of no consequence, and is one of which these complainants cannot in any event complain. The changes made in the resolution as to the plans and specifications were of small consequence compared with the magnitude of the whole work, and should not be considered.

As the case is now presented to this court, the determination of this court in the case of Townsend v. City of Manistee, 88 Mich. 408 (50 N. W. 321), is controlling.

See, also, French v. Common Council of Lansing, 30 Mich. 378; Smith v. City of Detroit, 120 Mich. 572 (79 N. W. 808); Corliss v. Village of Highland Park, 132 Mich. 152, 159 (93 N. W. 254, 610, 95 N. W. 416).

The decree of the court below will be reversed, and the bill dismissed.

BLAIR, C. J., and MONTGOMERY, HOOKER, and McALVAY, JJ., concurred.

GORHAM v. JOHNSON.

1. CERTIORARI JUDGE. The findings of fact made by the circuit judge on certiorari, to review the action of a highway commissioner in laying out a highway, are disregarded on a review in the Supreme Court, the return of the commissioner to the writ being conclusive of the facts.

APPEAL AND ERROR - FINDINGS OF CIRCUIT

2. HIGHWAYS-CERTIORARI-ESTABLISHMENT.

The report of a highway commissioner establishing a highway is not deficient for failing to give the date of receiving the petition filed therefor, if the dates sufficiently appear from the petition itself and the notice served. 2 Comp. Laws, § 4036 et seq.

3. SAME-NOTICE OF PROCEEDINGS.

A notice to landowners interested, of proceedings to lay out a highway, is sufficient although it omits to describe the same as a public highway, if no one was misled.

4. SAME-SERVICE.

Where all the land to be taken belonged to persons residing on the property, and notice was personally served on appellant, it was unnecessary to post the notices required by 2 Comp.

157 MICH.-28.