City of Louisville v. Gosnell having so contracted, we cannot assume that it has done so to such an extent as to increase the tax rate beyond the limit provided in section 157 of the constitution, or beyond the appropriation and levy provided for and mentioned in the sections of the act for the government of cities of the first class above referred to. On the contrary, we must assume that, in acting upon a subject with respect to which it had jurisdiction to act, it acted within the constitutional limitation, and within its revenue as fixed and limited by the statute quoted. We see no reason why the city, if not exceeding the amount of its revenue which it is authorized to expend, may not expend its money for objects the benefit of which it will receive in subsequent years. Upon the return of the case after the second appeal, counsel for the city, in a series of very skillfully drawn paragraphs, has attempted to plead around the opinion of the court. The first paragraph relies upon section 2820, Ky. St., providing that the executive boards and their officers shall not have power to bind the city "to any extent beyond the amount of money at the time already appropriated by ordinance for the purpose of the department under the control of said board," and it is claimed that, as no specific amount had been appropriated by ordinance for the specific purpose of paying 10 per cent. of the contract price of the street improvements under consideration for five years' repairs of the improvement after its completion, this claim could not be paid at all, although the same answer shows that over $95,000 had been appropriated for the payment of street repairs for that year. As we have held these repairs are to be treated as ordinary street repairs, the averments of the paragraph do not constitute a defense, under section 2820. So, in the third paragraph, appellant seems to be proceeding upon the theory that the subdivision of the levy was an appropriation for street repairs, and, therefore, having been appropriated for that purpose by the levy ordinance, there was no unexpended or unappropriated balance thereof which could, without violation of section 2982, be expended in payment for the street repairs here in question. The fourth paragraph is practically a plea that the court was in error in what it said upon the subject of these repairs in the former opinion. To be available, this matter should have been presented by petition for rehearing. The second paragraph, which undertakes to rely upon section 157, of the constitution, is, if we understand it correctly, a statement that the amount of the contract price under consideration, which has been held to be for repairs, viz. $577.07. makes the amount of indebtedness of the city for repairs of streets for that year exceed the total revenue and income of the city for that year by the amount of $577.07. We hardly think counsel intended to make such a statement. But we Bernard v. Green are not of opinion that facts to show that this contract was in violation of section 157 of the constitution have been sufficiently pleaded in this paragraph. The judgment is therefore affirmed. BERNARD v. GREEN et al. (Court of Appeals of Kentucky, Feb. 7, 1901.) [60 S. W. Rep. 631.] Street Assessments-Pleading. In an action to enforce a lien for the cost of a street improvement, a demurrer to the petition does not lie on the ground that a certain part of the apportionment warrant sued on was for keeping the street in repair, where neither the petition nor the ordinance or contract shows that anything was included for repairs. Appeal from circuit court, chancery division, Jefferson county. "Not to be officially reported." Action by James Green and another against S. M. Bernard to enfore a lien for the cost of a street improvement. Judgment for plaintiffs, and defendant appeals. Affirmed. John Roberts and D. M. Rodman, for appellant. BURNAM, J. Appellant complains of a judgment giving a lien upon his property for the whole amount of an apportionment warrant which was issued to E. L. Colson, contractor, for his proportion of the cost of improving Oak street from the central line of Fourteenth street, and Fourteenth street, if extended to the central line of Fifteenth street, by original construction of the carriage way of Oak street 36 feet in width, and by grading, curbing, and paving with vitrified brick, on the ground that there is included and charged in this apportionment warrant the 10 per cent. for keeping the street in repair. This question was attempted to be raised by demurrer alone, and, to support his contention, appellant refers us to the case of Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125. In that case the ordinances for the improvement of the carriage way of Oak street were filed with and made a part of the petition, and showed that the contractor guarantied the faithful performance of his contract according to the ordinance, and that the pavement therein specified, and the material composing same, should be kept in good repair for a period of five years from the completion of the work, and its acceptance by the board of public works. In this case neither the ordinance, contract, nor petition shows such an undertaking on the part of the contractor, so far as we are able to discover. We therefore conclude that appellant's demurrer was properly overruled, and that the petition sets up a good cause of action against the owner of the property sought to be subjected. No other error is complained of, and the judgment must therefore be affirmed. JOHN v. CONNELL et al. (Supreme Court of Nebraska, Feb. 6, 1901.) [85 N. W. Rep. 82.] Grading Street-Special Assessment-Ascertaining Damage before Ordering Levy. The provision of section 117 of the Omaha charter (chapter 10, Sess. Laws 1887) with respect to the ascertainment of damages before ordering the grading of a street is mandatory and indispensable, and compliance with the requirement is essential to vest the mayor and council with jurisdiction to levy a grading tax. Tax Sale-Irregularity-Subrogation of Purchaser to Tax Lien.Whether a tax sale is void on account of irregularities, or is void for want of authority in the treasurer to sell, the lien of the tax for the nonpayment of which the sale was made is transferred from the public to the purchaser. Subrogation of Purchaser to Lien for Prior and Subsequent Taxes.— And in such case the lien for any prior or subsequent taxes afterwards paid by the purchaser for the protection of his rights under the taxsale certificate is likewise transferred to him. Tax Sale-Certificate Based upon Void Assessment.-A tax-sale certificate based upon a void levy or assessment gives to the person to whom it is issued no lien upon the property described therein. Same-Payment of Subsequent Taxes by Purchaser. —But if the owner of such certificate, in the belief that it is valid, pays taxes subsequently levied, and which are a lien upon the property described in the certificate, he is subrogated to the rights of the public in such taxes, and entitled to enforce the lien therefor. Special Assessments — Jurisdictional Prerequisites Reversal of Judgment.-Where. the record shows substantial compliance with the jurisdictional prerequisites by the taxing authorities in levying a special assessment, and the landowner fails to point out or suggest the existence of any substantial defect in the proceedings, the judgment of the district court refusing to enforce the lien created by the statute in favor of the public will be reversed. (Syllabus by the Court.) Appeal from district court, Douglas county; Powell, Judge. Action by David C. John against William J. Connell and others. From the judgment John appeals, and Connell and others take cross appeals. Reversed. Wm. D. Beckett and H. P. Leavitt, for appellant. SULLIVAN, J. This action to foreclose a tax lien was brought by David C. John against William J. Connell in the district court of Douglas county. It is claimed that the lien results from a tax sale based upon a special assessment made by the proper authorities of the city of Omaha to defray the cost and expense of grading Poppleton avenue between Twentieth and Thirty-Sixth streets. It is alleged in the petition and shown by the proof that in 1892 the defendant's lot was, by the county treasurer, sold for the satisfaction of a delinquent grading assessment; that the plaintiff was the purchaser; that he received a tax-sale certificate in the usual form; and that he afterwards paid other general and special taxes charged against the property. The court found that the 6 M C Cas-11 John v. Connell special assessments were void, but that the general taxes were valid. It also found that the plaintiff was the owner by subrogation of the lien for general taxes, and rendered a decree-enforcing the same. Both parties appeal. The defendant insists that the tax sale was not grounded upon a valid tax, and that therefore the plaintiff acquired neither a lien upon the property, nor the right to pay taxes levied against it for subsequent years. At the time Poppleton avenue was ordered graded by the city authorities, the charter of 1887 had been adopted and was in force. By section 117 (chapter 10. Sess. Laws 1887) it was provided: "Before any street, avenue, or alley shall be ordered graded, the damages, if any, by reason of such grading to property along that portion of the street proposed to be graded, including approaches thereto, shall first be ascertained and determined by three disinterested free-holders, who shall be apppointed by the mayor and council for that purpose, who shall make such appraisement, taking into consideration the benefits, if any, to such property, and who shall exclude any damages resulting from any change or changes of the original or first established grade, and the amount of damages so assessed, unless an appeal is taken, shall be due and payable to such property owners, or their agents, in sixty days after the completion and acceptance of such work of grading. The requirement of this section in regard to the ascertainment of damages was, in our opinion, mandatory and indispensable. It was a condition precedent to the exercise of the power to order the grading to be done. Our former decisions compel us to this conclusion. Smith v. City of Omaha, 49 Neb. 383, 69 N. W. 402; Ives v. Irey, 51 Neb. 136, 70 N. W. 961; Merrill v. Shields. 57 Neb. 78, 77 N. W.. 368; Henderson v. City of South Omaha, 60 Neb., 82 N. W. 315; Von Steen v. City of Beatrice, 36 Neb. 421, 54 N. W. 677; State v. Birkhauser, 37 Neb. 521. 56 N. W. 303; Harmon v. City of Omaha, 53 Neb. 164, 73 N. W. 671; Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524. There was no attempt on the part of the city authorities to comply with section 117. supra, and consequently they never acquired jurisdiction to levy the grading tax. Not only was the sale to plaintiff unwarranted and null, but the levy itself was without lawful authority, and created no lien against defendant's property. Having concluded that the tax sale was not grounded on a valid assessment, we have next to inquire whether the court erred in giving judgment in favor of John for the general taxes, which he paid on the assumption that he had obtained a lien by virtue of the treasurer's certificate. It is now thoroughly settled by the decisions of this court that, so far as the purchaser is concerned, there is no substantial distinction between tax sales that are void on account of irregularities and those that are void for want of authority in the treasurer to sell. In either case the lien of the tax, for the John v. Connell nonpayment of which the sale was made, is transferred from the public to the purchaser; and so, also, is the lien of any prior or subsequent tax afterwards paid by the purchaser for the protection of his rights under the treasurer's certificate. Grant v. Bartholomew, 57 Neb. 673, 78 N. W. 314; Adams v. Osgood, 60 Neb. 84 N. W. 257. The defendant, however, contends that the right to pay subsequent taxes does not exist in favor of a person who has only an apparent, and not an actual, lien upon the property. It is said that in such case there can be no subrogation, because that right does not belong to one who makes a payment voluntarily, and not for the protection of some right or interest which he has in the property. Such is the rule laid down in Sheld. Subr. § 240. and it is not questioned here; but it has been held in this state that the holder of a tax-sale certificate is not a volunteer, even though the land described in the certificate is exempt from taxation. Wilson v. Butler Co., 26 Neb. 676, 42 N. W. 891, 4 L. R. A. 589. In the case just cited Maxwell, I., speaking for the court, said: "A party having a lien on real estate, or having reason to believe that he has such lien, by paying taxes to protect the same cannot be said to have made such payments voluntarily, so as to preclude a recovery. And further along in the same opinion the learned justice observes: "The tax purchaser has a right to assume that the records of the county state the facts as they actually exist, and rely upon them, and is not compelled to look elsewhere for evidence of their veracity." In Merriam v. Hemple, 17 Neb. 345, 22 N. W. 775, the tax for the satisfaction of which the defendant's property was sold was void because, according to the decisions under the former revenue law, the failure of the assessor to swear to the assessment roll was a jurisdictional defect. Morrill v. Taylor, 6 Neb. 236; Lyman v. Anderson, 9 Neb. 367, 2 N. W. 732; McNish v. Perrine, 14 Neb. 582, 16 N. W. 837. But it was held, nevertheless, that the plaintiff had, by the payment of subsequent taxes, become subrogated to the rights of the public, and was entitled to enforce the lien acquired thereby. The doctrine of the case is thus stated in the syllabus: "Where the purchaser at a void sale of real estate for taxes pays the taxes legally levied upon the real estate for subsequent years, upon a failure of his title he will be subrogated to the rights of the county to the extent of the legal taxes so paid by him, with legal interest, even though the taxes upon which the sale was had were void by reason of the default of the assessor in not filing the proper oath with the assessment roll." It has been said over and over again in the decisions of this court that the policy of our revenue law has always been to encourage men to become purchasers at tax sales, by insuring them against loss of the money invested. The most recent expression upon the subject is found in Grant v. Bartholomew, supra. In that case Ragan, C., speaking of the legislation in favor of purchasers |