91 Neb. 184 | Neb. | 1912
Lead Opinion
In August, 1907, the mayor and council of the city of Omaha passed an ordinance “creating improvement dis-. triet No. 961 in the city of Omaha for the improvement of that part of Jackson street from 28th street to the west line Of 80th street in said city, by curbing and paving, and fixing and defining the boundaries of said district and ordering the improvement of the same.” The ordinance fixes the boundaries of the district, names the lots and blocks included therein, and directs the city clerk to advertise for and receive bids upon material of different kinds. Afterwards, an ordinance was passed reciting that the record owners of lots in the improvement district “have failed to designate the material for said pavement” and providing that the material used shall be “Purington. vitrified brick block for paving and Indiana stone for curbing.” Afterwards an ordinance was passed entitled “An ordinance levying a special tax. and assessment on all lots and real estate within street improvement district No. 961 in the city of Omaha, to cover the cost of paving and curbing Jackson street from 28th- street to 30th street.” By this ordinance taxes were levied against lots not included in the improvement district. The owners of such lots objected to the assessment of such taxes and afterwards appealed to the district court. The district court sustained the action of the city council, and the property owners have appealed to this court.
The counsel for the city insist that the mayor and council can levy taxes to pay for the improvement upon any and all property benefited thereby, whether the same is within or without the improvement district. Section 107, ch. 12», Comp. St. 1911, provides that the mayor and city council shall have authority to create street improvement districts for the purpose of improving all streets, alleys, or other public grounds therein by paving, etc., and section 106 provides that in the same ordinance that creates improvement districts for paving, etc., the mayor and council
The principal purpose of creating an improvement district is to determine what property is liable to assessment if specially benefited, and to give to the owners of property liable to be assessed for the improvement “a voice in the determination of how, when and where the. improvement shall be made.” The formation of the improvement district is the foundation for all subsequent proceedings. This district so formed composes the territory to be affected by the improvement, which it is supposed will be benefited thereby. Property owners within the district must take notice that their property will be affected, and that -they may be called upon to pay the expenses of the improvement. The second subdivision of section 108 of the act requires the mayor and council “to give the property owners within any district” opportunity to designate the materials to be Aised. The district so formed must be given a definite corporate name for the purpose of paying for the improvement. Section 198. The formation of the district is also important because all of the property owners Avithin the district, as above stated, are entitled to participate in designating the materials to be used. “Property owners whose property Avill be charged by the establishment of a paving district arc entitled to insist that the soA'eral petitioners therefor sign in such a way as to be fully and legally bound, * '* * the whole tendency of recent legislation in this state has been to
Under the contention of the city in this case, the formation of an improvement district has no purpose whatever, no subsequent action of the city authorities or the property owners has any reference to the improvement' district in any manner; and this in the face of the statute which forbids the council to take any other proceeding in the matter until they have created the improvement district. The contention is that, if the improvement district has been formed and the improvement lias been made, the authorities may levy assessments to pay for the improvement without any regard to the improvement district, and upon property beyond its limits. It is not necessary to determine whether the legislature could confer such, here
Section 107 provides that “the mayor and city council shall have power to levy special taxes or assessments on account of said improvements on any or all property benefited thereby according to the special benefits received by said property from said improvement.” This follows the provision authorizing the mayor and council “to
Section 177 of the act provides: “All special assessments to cover the cost of any public improvements herein authorized shall be levied and assessed on all lots, parts of lots, lands and real estate specially benefited (by) such iinprovement, or (and) within the district created for the purpose of mailing such improvement.” It is con
It is suggested that the mayor and council might, by a. subsequent ordinance, create a “taxing district” which would include property benefited but not included in the improvement district required by statute. In all the different states it is required when work of this kind is to be done that a district shall be formed. This, district is sometimes called a paving district, a sewer district, a taxing district, and assessment district, or an improvement district. The latter is a general word and covers all of the purposes for which the district is formed. It makes no difference which one of these several names is given to the district. Our statute requires that the district be formed the first thing that the council does, and calls it the improvement district, and says that it is for the purpose of “improving all streets * * * by paving,” etc. In the index to Page and Jones on Taxation by Assess-
Our statute requires the council to form an improvement district, as before stated, but it nowhere requires or authorizes them to form another district. The term “taxing district” is not named in the statute. Section 1.75' provides that the council shall sit as a board of equalization, and that as such board it shall “hear and determine all complaints, and shall equalize and correct such assessment” (that is, the assessment that has been reported by the proper authorities). That is all that the hoard of equalization can do, and then, after all corrections have been made, the council, not as a board of equalization, but “at a regular meeting thereafter,” can levy such special assessments; that is, such special assessments as have been equalized by the board of equalization. This is all that the council can do, and it is impossible to find in these provisions any authority for forming any taxing district, and it would seem to be an idle thing to do, after the district which the law requires has been already formed in the commencement of the proceedings. The improvement district is the foundation of all other proceedings, and the improArement is to be paid for by issuing bonds, styled “ImproArement district bonds,” giving the number of the district, and by levying a tax upon the property in said district to pay the bonds. If the first assessment is set aside for irregularities a new assessment may be made upon the property in the district.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Dissenting Opinion
dissenting.
I cannot concur in the majority opinion for the follow
It appears from the record that the questions actually litigated and determined by the district court are as follows: Did the board of equalization and assessments have the power to create a taxing district embracing lots not actually abutting upon the street improvement? And could such nonabutting lots be taxed to pay for the improvement to the extent and amount to which they were benefited thereby? Chapter 12ft, Comp. St. 1907, commonly called the Omaha charter, so far as it relates to the foregoing questions, reads as follows: Section 177. “All special assessments to cover the cost of any public improvements herein authorized shall be levied and assessed on all lots, parts of lots, lands and real estate specially benefited by such improA'-ement, or within the 'district
The record discloses that the board of equalization found that the lots situated upon each side of the street improvement in question to the center of each adjoining block were benefited by the improvement, and therefore, to that extent, included the nonabutting lots owned by the appellants within the assessment district and assessed them for actual benefits. By section 6, art. IX of the constitution, it is provided: “The legislature may vest the corporate authorities of cities, towns and villages, with power to make local improvements by special assessment, or by special taxation of property benefited.” Therefore, it seems clear that the foregoing provisions of the Omaha
The majority opinion holds that the provisions of sections 186 and 198 of the charter, which authorize a relevy of special assessments, and provide for the issuance of bonds to pay for street improvements, require us to place such a construction upon the charter as will prohibit the board of equalization and assessments from assessing property benefited by the improvement to pay for such benefits unless it is included in the ordinance passed and approved by the mayor and city council creating what is called an improvement district. In answer to this declaration it may be said that, at the request of the inhabitants of the city of Omaha, the legislature, in the year 1905, enacted a law creating charters for cities of the metropolitan class; and since that time the authorities of the city of Omaha have paved and improved many miles of its streets, and to pay the costs of such improvements the property actually benefited thereby has been assessed to the extent of such benefits. Unless compelled to do so, we should not reverse the judgment of the district court and adopt a different construction of the charter provisions. To do so will result in great hardship and confusion, will encourage litigation, and the courts will soon be congested with suits by which the many will seek to compel the few to bear the whole burden of paying for necessary public improvements.
In Page and Jones on Taxation by Assessment a clear distinction is made between what is called an improvement
It has also been suggested that the form of the bond described in section 198 prevents us from approving the construction adopted by the city authorities and the trial court. Upon this point it may be said that it is the duty of the board of equalization and assessments to determine what property is actually benefited by the improvement, and the final determination of that question fixes the boundaries of the improvement or taxing district; and in case it is deemed best to issue bonds to reimburse the city for the cost of the improvement instead of dividing the tax into ten annual payments, then the board should designate; the taxing district by the number adopted at the time the improvement is ordered. This would comply with the requirements of the charter and avoid any confusion or misunderstanding. Upon a careful review of the authorities and of the charter provisions, I am of opinion that the construction given by the district court to those provisions is a reasonable one, and ought to be sustained.
Finally, it appears that the appellants have had their day in court; that the questions presented by them have been fairly litigated and determined; and it follows thai