June, 1902.] Opinion of the Court-FULLERTON, J.

It is urged that Cline v. Seattle, 13 Wash. 444 (43 Pac. 367), is contrary to this view of the statute. It is true that the court in that case did say that, "if the reassessment could be made at all, it could only be made under the provisions of the charter in force at the time it was made,' but the court was speaking of a reassessment attempted to be made under a charter amendment authorizing a reassessment, and to the question whether a change in the assessment district from that originally established voided the reassessment. The question whether the city authorities, in the absence of charter provisions and ordinances, could reassess under the act of 1893, was not before the court, and was not intended to be denied.

It is next said that the reassessment is contrary to the act of 1893 and the charter of the city because it is an assessment for two distinct improvements. It is meant by this that, because the judgment of the superior court enjoined the improvement as originally planned on a part of the street, and the city thereafter performed the work on each side of the enjoined portion, the work became two separate and distinct parts, having no such connection with each other as to authorize the two portions to be assessed as one district. Undoubtedly, it would be a sufficient ground for directing a modification of the assessment were it shown that the improvement of the one part in no wise benefited the property adjacent to the other, and that the method of apportioning the cost pursued caused a part of the property to be assessed at a higher rate than it would have been had the cost of that part of the work which conferred the benefit upon it been alone assessed to it; but the fact that the assessment was apportioned as if the improvement were continuous will not of itself render the assessment void. The nature, character, and extent of an improvement must

Opinion of the Court-FULLERTON, J. [28 Wash.

rest within the discretion of the city council. The law fixes no metes or bounds in this respect, beyond which it cannot go, further than it may not permit a gross abuse of such discretion. Whether, therefore, the work as ordered and performed consists of disconnected portions, or of a continuous portion, of a street, or whether it consists of work done upon different streets, furnishes no ground of complaint to the individual property holder so long as the work confers a benefit upon his property, and he is not charged with a cost exceeding such benefit. Stated in another way, this is not a matter going to the jurisdiction of the council to make the improvement; at most it is but an erroneous exercise of jurisdiction, available to a complainant only when he shows a resulting injury. This court has repeatedly held that all questions affecting the assessment proceedings, not going to the jurisdiction of the municipality to make the assessment, must be taken before the city council on the hearing pending the confirmation of the assessment proceedings by that body, and appealed therefrom to the courts, before the courts have authority to inquire as to mere error therein. See the cases collected in Potter v. Whatcom, 25 Wash. 207 (65 Pac. 197). The logical deduction from this principle is that the courts regard errors in the decisions and orders of the city council, when exercising this power, as it regards errors in the judg ments of tribunals exercising judicial functions; that is to say, where the city is shown to have acquired jurisdiction of the subject-matter over which it is acting, errors warranting a modification or annulment of its decisions and orders must be errors affecting some substantial right of the complaining party which operate to his injury. This principle was applied by this court in Spokane v. Browne, S Wash. 317 (36 Pac. 26), where the validity of a street

June, 1902.] Opinion of the Court-FULLERTON, J.

assessment was in question. It was there contended that the city had no right to change the method of making and collecting the assessment, from the manner provided by ordinance at the time the work was done, to another and different method, but that the property holder had a vested right to have the assessment made according to the provisions of the ordinance existing at the time the improvement was ordered. The court held there was no such vested right in the property holders, using this language:

"What was such vested right? Not that the assessment should be collected in any particular manner, so far as property owners were concerned, but rather that they should not be called upon to pay in excess of a certain sum. It does not appear in this case that the respondents have been in anywise injured, or that they have been called upon to pay in this action or by this levy any greater sum than they would have been required to pay in the original scheme of assessing according to valuation. Nor does it appear that they have been asked or required to make any earlier payment. In our opinion, in order for them to attack the assessment it must appear that it has worked to their injury. Otherwise they have no right to complain, for the manner of making the assessment and collecting the same is otherwise of no consequence to them.”

The statute of 1893 (§ 9) also provides that the judgment of the court on an appeal "shall be either to confirm, modify or annul the assessment in so far as the same affects the property of the appellant." It seems plain that, if any such power needs to have been conferred by the statute, the power here given to modify contemplates that the court shall not dismiss or annul the assessment for errors which do not go to the jurisdiction of the city council to make the assessment, but shall, for such errors as are prejudicial and require a modification, send the proceedings back to that body, with instructions to correct the er

Opinion of the Court-FULLERTON, J. [28 Wash.

rors, and proceed with the collection of the assessment after the errors have been corrected. This being true, it must follow that errors which do not prejudice require no modification of the assessment; and that a party complaining of errors in the proceedings must show an actual injury to himself resulting from such errors before the court is required or authorized to interfere. In this case, the appellant does not contend that any actual injury was caused him by this particular action on the part of the city council. Its action was, therefore, if error at all, error without prejudice, and requires no modification.

The next contention is that the right of the city to levy the reassessment was barred by the statute of limitations. The original assessment was declared void by the judgment of the superior court on February 2, 1897. The ordinance ordering the reassessment was passed on March 6, 1899. There is no special statute limiting the time for making a reassessment after the original assessment has been adjudged void, but, if it be admitted that the statute limiting the time in which an action may be commenced to enforce an assessment after it has been levied applies to the right of the city to make the assessment, the statute had not run between these dates, as the right of action is limited to ten years. Laws 1895, p. 270; State ex rel. Hemen v. Ballard, 16 Wash. 418 (47 Pac. 970); Bowman v. Colfax, 17 Wash. 344 (49 Pac. 551); Fogg v. Hoquiam, 23 Wash. 340 (63 Pac. 234). Counsel, however, make the further point that more than two years elapsed between date of delinquency of the original assessment and the time the action was instituted to enforce its collection, which resulted in the adjudication that the assessment was void. In the light of the cases last above cited, it would seem that this, if the record bore out the contention, would not be ma

June, 1902.]

Opinion of the Court-FULLERTON, J.

terial, but the record is not certain as to the date on which the action was actually commenced. The file marks on the complaint show that the action was commenced within the statutory period, while the appearance docket would indicate that it had been commenced one day later, and no evidence was introduced tending to show the true date. The statutes, as they then existed, provided that an action should be commenced by filing a complaint, and that the clerk should indorse on the complaint a certificate of the filing thereof, showing the date of such filing; while another section required the clerk to keep an appearance docket, in which he was required to note all appearances in an action and the time of filing all pleadings therein. The court will presume, as against the statute of limitations, where these dates disagree, and no showing is made of the true date, that the certificate on the complaint shows the true date. The statute of limitations cannot, of course, be deemed as running during the time in which the city was attempting to enforce the original assessment.

The city included in the assessment the cost of improving intersecting streets and alleys. It is contended that this should have been deducted, and that the amount assessed against the appellant's property is proportionately too large for that reason. The act of 1893 (§ 6) empowers the city to assess the property "for an amount which shall not exceed the actual cost and value of the improvement." The authority here given is, we think, sufficiently broad to authorize the city to include the cost of improving intersecting streets and alleys in the charge to the property benefited, and whether it will do so or not is, therefore, within the discretion of the city council to determine. Being so, it is not reviewable here.

Lastly, it is said that the city council was without jurisdiction to provide for the collection of interest. The ques