10 Neb. 98 | Neb. | 1880
The only question in this case is whether damages occasioned by a change of the established grade of a street, which have been ascertained and paid to property owners, as provided in Sec. 40 of the Act to Incorporate Cities of the First Class [Gen. Stat., 123], can be reimbursed to the city by means of a special assessment laid upon the lots abutting said street. The question itself seems to suggest a negative answer, for it would be highly absurd to denominate the mere formality of handing a sum of money to a lot owner as damages, and at once recovering it from him by means of a special assessment upon his damaged property, a payment. Fortunately the, legislature have neither recognized nor permitted such a course to be pursued.
The section of the statute referred to provides that a grade once established may be changed, but only
In Hurford v. The City of Omaha, 4 Neb., 336, the provisions of this section were held to be mandatory, permitting no change of a grade once established unless observed. The “ change of grade ” here provided for has no direct reference to actual work upon the street, which may not take place for months, or even years, after the “ change ” is made, but merely to the ideal'rise and fall or elevation of its surface between given points as re-established, considered in comparison with the old grade and shown by proper profile, and to which it may thereafter be lawfully brought, either by cutting down or filling in, or both. In establishing or re-establishing the grade of a street or a portion thereof, it cannot be supposed that reference is had solely to the wants or conveniences of the owners of property abutting thereon, but rather to a system of grades for the ways of the entire city, devised for the benefit of all. Such evidently was the view taken by the legislature in providing for the payment of damages by the city prior to making any change in an' established grade.
But from whence is the necessary money with which to make payment or tender of these damages to come ? In the absence of a special provision for raising it we know of but one source — the general fund 'of the city. From this fund it was doubtless intended by the legislature that it should be taken as a legitimate expenditure, and there is no provision made for its repayment. Had it been the intention of the legislature that the amount thus expended should be returned to the treasury by means of a special assessment against
The claim of counsel for the city that such special assessment is authorized by the next succeeding section of the statute is, we think, unwarranted. This section does not in any way refer to the steps necessary to the nominal establishment or change of the grade of a street, avenue, or alley, but simply to the' actual labor and expense of bringing it to the “ established grade,” and in paving, macadamizing, or othei’erwise improving the same for public use. That the “ grading ” of a street, for which the abutting proprietors may be specially taxed, does not include the expenses incident to the establishment of the grade is apparent from an inspection of other sections of the same act, particularly sec. 43, which provides that: “All grading, paving, macadamizing, or guttering of any streets, avenues, or alleys in the city, for which, or any part thereof, a special tax shall be levied, shall be done by contract with the lowest responsible bidder, to be determined by the council.” Not only is there nothing in the statute from which it can reasonably be inferred that the legislature intended this burden might be specially assessed, either in whole or part, upon the property damaged, but in view of the constitutional provision that “ the property of no person shall be taken or damaged for public use without just compensation ” [sec. 21, Bill of Rights], it may well be doubted that an express enactment to this effect coúld be upheld.
Several cases are cited by defendant’s counsel in support of such assessment, but an examination of the
Being of opinion that there was no authority for including the expenses incident to changing the grade in the amount assessed upon the property in question, the judgment of the court below must be reversed, and a judgment entered in this court conformably to tbe prayer of tbe petition. .
Judgment accordingly.