115 Neb. 84 | Neb. | 1926
This is a suit for an injunction to prevent the collection of special assessments against real estate owned by plaintiffs in the city of Minden. The assessments were levied by the mayor and council to pay the contract price of a sewage system consisting of a main, a number of laterals and a disposal plant. The entire city was included in the sanitary district and the real estate therein generally was charged with special benefits. The amounts levied were certified to the county treasurer for collection. Several lot-owners are plaintiffs. The defendants are the sanitary district, the city of Minden, the mayor, the members of the council and the county treasurer. Invalidity of the assessments is pleaded as a ground for an injunction. Plaintiffs aver that the main and the laterals are not available to them, that their assessed property is not benefited by the sewage system, and that the greater portion of the funds to pay for the improvement can be raised only by general taxes based on the value of the assessable property in the sanitary district. The suit was defended on the grounds that the proceedings for the establishment of the sewage system and for the payment of the contract price were regular, legal and valid; that plaintiffs had an adequate remedy at law by appeal from the action of the city, and that relief in equity was defeated by laches — failure to appeal from the assessments and levy and delay in bringing suit. The district court found that the assessments were void and granted an injunction to prevent defendants from collecting them. Defendants appealed.
“The erection of a sewage disposal plant is a general improvement the cost of which cannot be levied upon real estate by special assessment for benefits.
“The cost of main sewers in excess of special benefits can only be paid for by means of general taxation.
“All taxes for general purposes must be levied by valuation Uniformly and proportionately.
“Special assessments for construction of sewers should be confined to abutting property.”
Defendants insist that plaintiffs were not entitled to equitable relief and that the decision herein should follow Weilage v. City of Crete, 110 Neb. 544, where the court held:
“Where, in the making of assessments for local improvements and the levy therefor, property owners have opportunity to present their objections to the municipal body and to there have a hearing and pursue proceedings for review of the final decision of that body whether by error or appeal, they cannot fail to do so and then, in the absence of a substantial jurisdictional defect in the proceedings, question the proceedings collaterally by an independent suit to restrain the making of the levy.”
Should equitable relief have been denied on the ground of laches? The material facts are not in dispute. It is conceded that the main and the laterals, with a single exception, do not extend to the properties of plaintiffs, but this and other pleas do not necessarily destroy laches as an equitable defense to the suit for an injunction. The assessments were payable in instalments covering periods of five or ten years. All of the plaintiffs except two paid one or more instalments. The assessments for the main, intersections and disposal plant aggregated $65,855.18. Instalments amounting to $39,477.44 were paid by property owners generally. Payments have been made on 676 as
Eeversed and dismissed.