84 Neb. 434 | Neb. | 1909
This action was brought by plaintiffs to enjoin the collection of certain special taxes levied against their prop
Plaintiffs assert that the taxes are void for the following reasons: First, that the ordinance creating the improvement district is void because not properly passed; second, because the paving and curbing was not ordered by ordinance; third, because the council ordered the paving and curbing before the expiration of 20 days after the publication of the petition of property OAvners praying for the improvement; fourth, that 30 days’ notice was not given the property owners in which to select the material for paving and curbing; fifth, the city engineer’s estimate of the cost of making the rmprovem ents was not approved nor adopted by the council; sixth, the council did not approve the engineer’s plans and specifications separately and apart from plans' and specifications for other public improvements; seventh, the city paid for the paving and curbing by the proceeds of a bond issue, and could not levy a special tax to reimburse itself. These objections will be considered in their order.
Ordinance No. 1257, creating the improvement district, declaring the necessity for its improvement by paving and curbing, and providing for the designation of material to be used in its improvement, is asserted to be void because it was not properly passed. The precise objection made is that the ordinance was not read on three different days, and its second reading was by title only. The record shows that the ordinance was read on three separate days. The second reading occurred at what was termed in .the council proceedings “an adjourned meeting.” It did not appear that any previous regular or special meeting had been adjourned to that date. It did appear, however, that all members of the council were present and voted to place the ordinance upon its second reading. It is wholly immaterial whether the meeting of the council was a
It is further contended that the ordinance is void because it was read by its title only at the second reading. There are two sections of the South Omaha charter, as it then existed, relating to the manner of passage of ordinances. They are sections 8107 and 8108, Ann. St. 1903. By the first of these sections ordinances of a general or permanent nature are required to be “fully and distinctly read on three different days unless the council shall dispense with this rule by a two-thirds vote of the members elected.” Section 8108 provides, among other things, “that no ordinance shall be passed the same day or at the same meeting it is introduced, and no ordinance shall be passed without being fully read on three separate days.” These two sections are in seeming conflict. They were both passed at the same time and as a part of the same general act. Construing the two sections together, we think it was the intention to permit the council by a two-thirds vote to suspend the rules and dispense with the reading in full on three different days. Any other construction would make nugatory the provisions contained in the first of these sections for the suspension of rules by a two-thirds vote of the council. Statutes should be so construed, if possible, as to give effect to each and every part thereof.
The record' does not disclose that there was any formal motion to suspend the rules, but it does show that all members of the council were present and all of them voted to place the ordinance upon its second reading by title. Defendants contend that this is equivalent to a suspension of the rules. The object of the rule was to prevent hasty and ill-advised legislation and to prevent an ordinance being passed or adopted until read in full on three
Plaintiffs contend that the paving and curbing should have been ordered by ordinance, and that it could not be lawfully ordered in any other way. The law governing the construction of such public improvements in the city of South Omaha is contained in section 128 of its charter and particularly in subdivision III thereof. The first part of said section 128 is as follows: “In addition to the powers herein granted, cities governed under the provisions of this act shall have, power by ordinanceI. To levy taxes for general revenue purposes. * * * II. To levy any other tax or special assessment. * * * III. The mayor and city council shall have the authority to create street improvement districts for the purpose of improving the streets,” etc. There are a large number of subdivisions of' section 128, many of which subdivisions begin with the infinitive, as do the first and second subdivisions. The third subdivision, however, provides a
In said third subdivision of section 128 it is provided that a copy of the petition of the property owners praying the improvement shall be published in the official paper of the city for five consecutive days, and no paving shall be finally ordered or contract let for the same until the 20 days allowed for protesting signatures shall have expired. Plaintiffs insist that 20 days did not elapse
Plaintiffs contend that the property ownérs did not have notice to select the material for paving and curbing Thirtieth street. In the latter part of said subdivision III of section 128 it is provided that whenever any paving and curbing shall be declared necessary by the mayor and council, and an improvement district shall have been created, it shall be the duty of the mayor and council to give the property owners within such district 30 days from the date of the approval and publication of the ordinance declaring such improvement necessary to designate by petition the material to be used in the paving and curbing. There is a further provision that, if the property owners fail to designate the material, the mayor and council may designate it. The statute does not require the service of any notice upon the property owners. Ordinance No. 1257, above referred to, was published on the 15th day of June, 1904. It provided as follows: “That thirty days be and the same are hereby given to the property owners within said improvement district from and after the approval and publication of this ordinance in which to designate the material, according to law, with which the curbing and paving of said streets shall be done.” The statute simply gives to the property owners 30 days within which to designate the material, but does not require that any notice be served upon them. A similar provision in the charter of the city of Omaha has been construed by this court and it was held that no
Plaintiffs complain that the estimate of the city engineer was never approved nor adopted by the council. Section 61 of the charter provides that, before the council shall make any contract for work on the streets or any other work or improvement to cost more than $200, an estimate of the total cost thereof, together with detailed plans and specifications thereof, shall be made by the city engineer and submitted to the council, and, if approved by the council, such plans and specifications shall be returned to the city engineer and kept by him subject to public inspection, and no contract shall be entered into for any work or improvement for a price exceeding such estimates. It appears from the record that the plans and specifications of the city engineer were approved by the mayor and council, but there was no approval of the estimate. A careful reading of that portion of the statute shows that the approval by the council has reference to the plans and specifications only, and not to the estimate. The only reference to the approval by the council is in the. following language: “And if approved by the council such plans and specifications shall be returned to the city engineer and kept by him subject to public inspection.” This clause is set off by commas, and has no reference to the estimate of the cost made by the engineer.
Plaintiffs further complain because the action of the council in approving the plans and specifications was by a vote taken upon the acceptance of these particular plans, together with plans and specfications for an entirely different district, and both being approved by the same vote1. The statute nowhere requires that a separate vote should be had in approving the plans and specifica
It is finally contended that, after the city had paid for the improvements by the proceeds of the issue of bonds, it was without power to reimburse itself by the levy of special taxes. A sufficient answer to this is that the charter specially provides that the city shall issue general bonds to pay for the improvement, and then provide by special taxes and assessments' a sinking fund for the payment of said bonds. The special taxes complained of appear to have been levied in conformity with the statute.
We find no error in the record, and therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.