93 Neb. 510 | Neb. | 1913
This is an action to enjoin the officers of the city of Florence, in Douglas county, from paving, curbing, guttering or snbdraining Main street in said city, to enjoin the issuance of any evidences of debt to pay for the same, and to enjoin the contractor from doing the work or receiving pay therefor.
It is alleged in the second amended and supplemental petition that plaintiffs are resident freeholders and -taxpayers of the city of Florence, which is a municipal corporation having a population of more than 1,000 and less than 5,000; that defendant Tucker is the mayor of the city; that defendants Craig, Price and Allen are each councilmen or aldermen thereof; that the population of the city is about 1,500, and the assessed value of the tax. able property therein was $341,591 at the last assessment, and did not exceed that sum; that on or about the 2d day of August, 1909, the city council pretended to pass, and the mayor approved, an ordinance ordering the paving, guttering and subdraining of Main street therein from the railroad tracks near the south side of Jackson street to the south line of Briggs street, and advertised and called for bids for the work, but did not call for bids
Separate amended answers were filed by Tucker, Craig, Price, Allen, and the city of Florence, on the one part, and
A joint answer was filed by Ford and Jackson, containing admissions similar to those contained in the answer of the city officers, and alleging that the city purposes paying for the pavement outside the outer rails of said tracks and between the double track, and the contractor charge the expense thereof to the city; that the contractor is proceeding with the work; that the proceedings from the inception thereof, to and including the advertisement for bids, the bid of Ford, and the letting of the contract to him, were regular and in accordance with law and the ordinance of the city; that the city and school district oAvn property in the city as alleged. It is alleged that the contract has been fully completed and performed by Ford, and the same has been duly accepted by the city. Other averments of the petition are denied. It is further alleged that prior to August 9, 1909, plaintiffs had knowledge that the city contemplated the improvements of Main street in the manner provided for, and of the passage of the ordinance of August 2 of that year; that bids were to be called for and opened by the council in open session; that action on the bids Avere deferred for investigation; that on the 20th of August, 1909, plaintiffs instituted this suit, alleging the invalidity of the proceedings and proposed contract, and seeking an injunction against the same; that a restraining order was issued, but Avhich, upon a full hearing, was subsequently set aside, and an injunction was refused; that the bid of Ford was subsequently accepted, the contract awarded and entered into, by which defendant was. required to begin the performance thereof within ten days after the signing and delivery
Upon a trial being had in the district court, á finding and decree were entered substantially as follows: A general finding in favor of plaintiffs and against the defendants upon the allegations touching the issue of bonds; that the plaintiffs are entitled to an injunction as prayed; a perpetual injunction against the city of Florence, its officers and agents, restraining them from issuing the bonds of the city in payment of the improvement referred to; that Jackson and Ford are restrained from receiving or accepting any bonds of the city therefor. Costs expended by plaintiffs in all matters relating to the proposed issue o.f the bonds are taxed to defendants. Upon the other issues involved, the finding and decree are in favor of defendants, and the suit is dismissed at plaintiffs’ costs in so far as said issues are concerned. Plaintiffs appeal.
As the decree of the district court upon the question of the right of the city to issue its bonds for the purpose of providing funds with which to pay the contractor for paving the street was in favor of plaintiffs, and no cross-appeal having been taken by defendants, that part of the decree must be taken to be a final adjudication of the question, with which wTe have nothing to do, and no further
There is some objection .to the manner in which the publication of the ordinance and other matters in'which notice of the proceedings were made. The evidence tends to show that no paper was printed in the city of Florence at the time the publication was made; that there were papers issued and sent out from offices maintained in the city, but the mechanical work of printing was done in
It is next contended that the bid of Mr. Ford, to whom the contract was awarded* exceeded the city engineer’s estimate. It appears that the items which exceed the engineer’s estimate were of little importance, and when the' contract was finally entered into those items were brought within the estimate, and the contract was not for an excessive amount. The slight error in the bid could not render the contract void.
Ordinance No. 254, passed by the mayor and council of defendant city of Florence on the 2d day of August, 1909, by which the grading and paving of Main street were ordered, provided for the payment of the cost of the improvement by the city, “except such portion thereof as must be paved by the Omaha & Council Bluffs Street Railway Company.” By this language the cost of paving the street exceptéd that expense from that assumed by the city, and clearly indicated the purpose of requiring the street railway company to pay the expense of grading and paving along its tracks, then upon the streets, as provided and permitted by the charter of the city. The ordinance as published contained the same provisions. The published notice to contractors contained the recital that there would be 31,841 yards of paving to be constructed, “and that, in the event of the Omaha & Council Bluffs Street Railway Company laying double tracks on said part of said street, there will be 23,451 yards of paving, the cost of which will be taxed to the real estate within said district, and 8,390 yards of paving, the cost of which must be paid by the said railway company.”' The ordinance requiring the street to be paved was passed August
The charter of the city (section 69, subd. IY) provides: “Any street or other railway company occupying with any track any street, avenue or alley or portion thereof which may be ordered paved, repaved, or macadamized may be charged with the expense of such improvement of said portion of such street, avenue or alley so occupied by it between its rails and for one foot beyond the outer rails, and the cost thereof may be collected and enforced against such company, in such manner as may be provided by ordinance, or the mayor and council or board of trustees may by ordinance require such company to pave, repave, or macadamize such portion of such street, avenue or alley occupied by said tracks, and for one foot beyond its outside rails.” At the time of the commencement of the proceedings to secure the pavement of the street, the street railway company maintained a line of railway thereon, consisting of a single track, on which it was operating its cars. On the 25th of September, 1909, the mayor and council adopted a resolution waiving “the provision in chapter 14, article I, of the Compiled Statutes of the State of Nebraska 1909, which requires the street railway company, in the event of street paving in cities like Florence, to pave or pay the cost of paving between its rails and to a distance of one foot on the outer sides thereof.” It is then resolved that, in consideration of the
The judgment of the district court is therefore
Affirmed.