City of Omaha v. Olmstead

5 Neb. 446 | Neb. | 1877

Maxwell, J.

I. The plaintiff in error is organized as a city, under the provisions of “ An act to incorporate cities of the first class.”

Section fifteen of the act gives to the mayor and council the care, management and control of the city, its property and finances. The twenty-fourth sub-division of section fifteen, grants the power “ to care for, and control, to name and re-name streets, avenues, parks and squares within the city, to provide for the opening and vacating of streets, avenues and alleys within the city, under such restrictions and regulations as may be provided by law.”

Section forty-one provides that “ the council shall have power to open, extend, widen, grade, pave, or otherwise improve and keep in good repair or cause the same to be done in any manner they may deem proper, any street, avenue or alley within the limits of the city, and may also construct and repair, or cause and compel the construction and repair of sidewalks in such city, of such material and in such manner as they may deem proper and necessary, and to defray the cost and expense of such improvement on any of them, the mayor and council of swell city shall have power and authority to levy and collect special taxes and assessments upon the lots and pieces of ground adjacent to, and abutting upon the street, avenue, alley or sidewalk thus graded, paved, extended, constructed or otherwise improved or repaired.”

Section forty-nine provides that “the council shall have power to provide for keeping sidewalks clean and: free from all obstructions and accumulations, and may, provide for the assessment and collection of taxes on unoccupied real estate, and for the sale and conveyance thereof to pay the expenses of keeping the sidewalks, adjacent to such real estate clean and free from obstructions and accumulations as herein provided.”

By an act approved November 4, 1858, the city of Omaha was incorporated under a special charter, which conferred certain benefits and privileges upon the city.

On the 8th day of February, 1869, an act to incorporate cities of the first class became a law. The first section provides that all cities within this state having, three thousand legal voters shall be deemed cities of the first class.

Section sixty-four provides that all rights and property, of every description which were vested in any municipal corporation under its former organization, shall be, deemed and held to be vested in the same municipal corporation under the organization made by this act. Various amendments to the act have since been made by the legislature, which do not require examination.

It will not be denied that an act providing for the incorporation of a city must be accepted as a whole, and that the city in accepting the benefits derived therefrom, must perform the duties required by law. The corporate franchise is a valuable privilege; and is a sufficient consideration for the duties which the law imposes. The state grants to the municipality a portion of its sovereign authority, in greater powers of self-government than are • given to quasi corporations, in increased facilities for the acquisition and control of corporate property, and in the special authority over, and control of, the streets, and their adaptation to the wants and convenience of the citizens of the municipality. The acceptance of these privileges is considered as raising an implied promise on the part of the city to perform its corporate duties; and this implied agreement made with the sovereign power enures to the benefit of every individual interested in the proper performance of such duties. Cooley’s Con. Lim., 248. Weet v. Brockport, 16 N. Y., 161. Browning v. Springfield,, 17 Ill., 143. Pittsburgh v. Grier, 22 Penn. St., 54. Weightman v. Wash, 1 Black, 41. Chicago v. Robbins, 2 Black, 418. Neb. City v. Campbell, Id., 590.

The city has the exclusive control of its streets, and ample means are placed under the control of its constituted authorities to maintain the streets in a safe condition. Under these circumstances the city is liable for its failure to perform its duty.

In Detroit v. Blackeby, 21 Mich., 114, it was held (Coolky, J., dissenting), that the city was not liable. The court say: “In the case of Eastman v. Meredith, 36 N. H., 248, the distinction between the English and American municipal corporations is clearly defined. The former often hold special property and franchises of a profitable nature which they have received upon conditions, and which they can hold by the same indefeasable right with individuals. But American municipalities hold their functions merely as governing agencies.”

While it is true that in particular instances property and valuable franchises of a profitable nature were conferred upon municipal corporations as a condition for the performance of certain acts; yet it will not be contended that all, or any considerable proportion, of such corporations were thus endowed. Nor will it be claimed that liability for neglect of duty was restricted to corporations thus benefitted. I think it will be found on examination, that as a rule, as valuable privileges and benefits are conferred by our laws providing for the incorporation of cities as were conferred by ancient charters.

II. In selecting jurors the object of the law is to secure fair, impartial, unbiased persons, and it is the duty of the court, where objection is made, to see that such persons only are permitted to sit on a jury; but the mere interest of a tax-payer and resident of a city is not of itself, under ordinary circumstances, sufficient to disqualify him from acting as a juror in a case in which the city is interested. In this case both parties objected to residents of Omaha as jurors, and the objections were sustained by the court. The plaintiff in error, therefore, is not in a position to insist on the objection. A fair jury appears to have been selected, and the questions of fact fairly submitted to them, and we see no sufficient ground to disturb their finding. The judgment of the district court is therefore affirmed.

Judgment affirmed.