Argument for Appellant.

the council to proceed further in accordance with the provisions. of the statute.

4. Where an affidavit of publication is required to be made and filed as proof that the publication has actually been made, the actual existence of the fact required to be shown by the affidavit is the thing which confers the jurisdiction, and the affidavit is merely the proof that the jurisdictional facts do exist, and a failure to make the proof will not obviate the facts, and such proof may be subsequently made showing that the jurisdictional facts did exist at the time the action was taken.

5. A sewer committee appointed under the authority of sec.. 2343 of the Rev. Codes should not comprise any of the members of the city council; but the fact that members of the council have been appointed and have acted will not annul or defeat the action which has been taken by such committee, and will not defeat the right and power of the council to issue bonds in payment for a sewerage system that has been constructed by and under the direction of such committee. Even though the members of the committee did not possess the requisite statutory qualifications to act on such committee, they would at least constitute a de facto committee and their acts could not be collaterally attacked.

6. Subd. 7 of sec. 2353, Rev. Codes, does not prescribe any particular form for an order which must be made by a city council. Any action of the council which discloses their purpose to approve any given act or adopt and pursue a given course is sufficient with-out reference to form.

7. Under the provisions of subd. 11 of sec. 2353, Rev. Codes, a city council cannot issue bonds for the construction of a sewerage system in excess of the "contract price and expense of such work or improvement."

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action by plaintiff to enjoin the issuance of bonds. Judgment for the defendant and the plaintiff appealed. Affirmed.

Perky & MacLane, for Appellant.

The power to make improvements such as this and to assess the cost thereof against abutting property is a special and limited one, and "can only be exercised in the mode pointed out by the act which grants it." (Hawthorne v. City of Portland, 13 Or. 271, 10 Pac. 342.)

Argument for Appellant.

The statute requires the ordinance of intention to describe the general character of the sewer system to be constructed. The ordinance in this case simply states that the "character of the proposed lateral sewer system shall be that of gravity and according to the plans and specifications now in the office of the city engineer." Such a requirement is common in statutes of this kind, and it is generally held that failure to follow it will invalidate the proceedings. (28 Cyc. 978, 1004; Schwiesau v. Mahon, 128 Cal. 114, 60 Pac. 683; Williamson v. Joyce, 137 Cal. 107, 69 Pac. 854.)

While the resolution or ordinance may incorporate plans and specifications by reference (see Haughawaut v. Raymond, 148 Cal. 311, 83 Pac. 53), yet the ordinance in this case does not do this, but simply says that the sewer is to be according to plans and specifications elsewhere on file. This is not sufficient, as such plans are no part of the records of the body having jurisdiction. (Chicago Union T. Co. v. Chicago, 209 Ill. 444, 70 N. E. 659.)

The statute requires the ordinance of intention to be published in the official newspaper, and that "an affidavit of such publication shall be filed with the clerk on or before the time fixed for hearing of protest." This requirement is definite, mandatory and material, and was utterly ignored in this case.

"In these proceedings all of the provisions of the statute must be strictly followed or jurisdiction fails." (City of Owosso v. Richfield, 80 Mich. 328, 45 N. W. 129; State v. St. Louis, 1 Mo. App. 503.)

What we really have here is an assessment made by the sewer and street committees, approved in a most perfunctory manner by the council, but not made a part of the council records in any manner. There was no finding by the council on the jurisdictional fact, viz.: The notice and publication. The jurisdictional facts should be found and declared to appear. They should be made of record, and not left to presumption. (Johnson v. Eureka Co., 12 Nev. 28; Gorman v. County Commrs., 1 Ida. 553; White v. Stevens, 67 Mich. 33. 34 N. W. 255; Smith v. Omaha, 49 Neb. 883, 69 N. W. 402.)

Argument for Respondent.

Rice, Thompson & Buckner and Smith & Scatterday, Amici Curiae.

From the records of the council, we find that there were no plans and specifications on file anywhere at the time the protests were heard on June 13, 1910. From the record as it appears before us, it is fair to presume that there were no plans and specifications in existence at the time the resolution was passed nor at the time set for hearing protests. "The proceedings being in invitum, we are not permitted to hold to be certain that which is uncertain.” (Bay Rock Co. v. Bell, 133 Cal. 150, 65 Pac. 299; Labs v. Cooper, 107 Cal. 656, 40 Pac. 1042.)

The filing of this affidavit on or before the time fixed for the hearing of protests is jurisdictional, and the failure to so file it renders the assessment void. (Wilson v. City of Seattle, 2 Wash. 543, 27 Pac. 474; McChesney v. People, 145 Ill. 614, 34 N. E. 431; Kearney v. City of Chicago, 163 Ill. 293, 45 N. E. 224; Estate of Cobb, 49 Cal. 599, 604.)

Every requisite having the semblance of benefit to the owner must be complied with, and where the form of a statutory proceeding is prescribed, its observance becomes essential to the validity of the proceedings. (Shipman v. Forbes, 97 Cal. 572, 32 Pac. 599; Smith v. Davis, 30 Cal. 537; Taylor v. Donner, 31 Cal. 481; Hewes v. Reis, 40 Cal. 255; Grimm v. O'Connell, 54 Cal. 522; Chase v. City Treas. of Los Angeles, 122 Cal. 546, 55 Pac. 414; City of Stockton v. Whitmore, 50 Cal. 554; Fay v. Reed, 128 Cal. 357, 60 Pac. 927.)

W. A. Stone and John J. Plowhead, for Respondent.

"A description is sufficient if the character of the improvement can be ascertained either from the ordinance itself or by reference to some other ordinance or map." (Abbott, Mun. Corp., pp. 874, 875 (note); Brewster v. City of Peru, 180 Ill. 124, 54 N. E. 233; Cunningham v. City of Peoria, 157 Ill. 499, 41 N. E. 1014; Page & Jones Tax. by Assess., sec. 490, 821; Richardson v. Mehler, 111 Ky. 408, 63 S. W. 957;

Opinion of the Court-Ailshie, Presiding J.

Harney v. Heller, 47 Cal. 15; Emery v. San Francisco Gas Co., 28 Cal. 376.)

"A reference to plans as those on file in the office of the city engineer is sufficient." (Chase v. Trout, 146 Cal. 350, 80 Pac. 81; Woollacott v. Meekin, 151 Cal. 701, 91 Pac. 612; Clinton v. City of Portland, 26 Or. 410, 38 Pac. 407.)

"If the resolution specifically refers to certain plans on file, they become a part of the resolution for the purpose of showing the nature of the improvement." (City of Greensburg v. Zoller, 28 Ind. App. 126, 60 N. E. 1007.)

The filing of the affidavit of the publisher "on or before" the time for hearing protests is not jurisdictional. (Canyon County v. Toole, 8 Ida. 501, 69 Pac. 320; Gilbert v. Canyon County, 14 Ida. 437, 94 Pac. 1029.)

When powers are conferred by charter or statute and these things have been done by which jurisdiction of the subject is acquired, all presumptions are in favor of the regularity of subsequent proceedings in promoting the purposes for which jurisdiction has been conferred. (Abbott, Mun. Corp., 709, 854; Adams v. City of Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797.)

The sewer committee was appointed by the mayor, and the objection raised is that the committee was composed of members of the city council. This committee proceeded to exercise the functions prescribed by statute, and, being officers de facto, the validity of their acts cannot now be questioned in a collateral proceeding. (Abbott, Mun. Corp., sec. 659; Mechem Pub. Off., sec. 328.)

AILSHIE, Presiding J.-This action was instituted by the plaintiff on his own behalf and on behalf of sundry other persons sought to be assessed in "Local Lateral Sewer Improvement District No. 3 of the City of Caldwell." The city council passed an ordinance, No. 167, setting forth their intention to organize a sewer district and to issue bonds for the construction of a sewer system. This was followed by an ordinance, No. 174, of the city of Caldwell establishing and bounding the district and providing for the construction of the

Opinion of the Court-Ailshie, Presiding J.

sewerage system. In pursuance of the ordinance of intention and the further ordinance establishing the district and providing for the construction of the system, the council caused a sewerage system to be constructed. This action was commenced to enjoin the issuance of bonds in payment for the work. The district court held in favor of the city, and the plaintiff appealed.

Several questions have been argued on this appeal, but we will only consider those which most deserve our attention. We may say, in the outset, that after a careful examination of the briefs and record, we are satisfied with the judgment of the lower court and feel that the same ought to be affirmed.

Sec. 3 of Ordinance No. 167, known as the Ordinance of Intention, provides as follows: "That the character of the proposed lateral sewer system shall be that of gravity, and according to the plans and specifications now on file in the office of the city engineer of the city of Caldwell." Subd. 3 of sec. 2353 of the Rev. Codes provides that the ordinance declaring the intention of the council to construct such works shall, among other things, state "the general character of the said proposed sewerage system and the sewerage disposal works, or portion thereof, and the estimated cost of the same. It is insisted by counsel for appellant, as well as counsel who appear as amici curiae, that this is not a sufficient description of "the general character of the said proposed sewerage system" to satisfy the requirements of the statute, and in support of this contention counsel cite many authorities discussing the sufficiency of a description contained in similar ordinances from other states. It would serve no useful purpose for us to review the cases here, as they all rest on separate and distinct statutes, and the decisions are, in a measure, influenced by the general statutes governing the incorporation of cities, towns and villages and dealing with the several powers and duties thereof. The record here does not contain the plans and specifications referred to in the foregoing section of Ordinance No. 167. It is quite clear that the description contained in sec. 3 of the ordinance would not be sufficient