67 Neb. 50 | Neb. | 1903
This is an appeal from a decree dismissing a petition for injunction. The plaintiffs in this action, Portsmouth Savings Bank, Omaha Brewing Association, Frank D. Brown, Clementine Brown, Herman Kountze, and Calvin H. Frederick, unite in asking an injunction against the city of Omaha and August H. Hennings, its treasurer, to prevent the collection of a special assessment of $2,927.43 for the repaving of a portion of Sherman avenue embraced in the city improvement district No. 614, so far as such assessment affected the premises of the plaintiffs.
It is complained in the first place that the petition for repaving was defective in not being signed by the owners of the majority of the foot-frontage on the street to be re
It is also complained because the notice to the owners, requiring them to select material for the paving within thirty days, was a general notice, not directed by name to any of the owners of real estate in the district.
It is complained further that the mayor and council never declared the repaving to be necessary.
It is complained that the petition, purporting to be signed by the owners of the property involved, that asphal-tum be used for the entire repaving, was not signed by a majority of the owners, and that the ordinance, and its approval, providing for pavement with such material, was not authorized; that notice of the meetings of the council as a board of equalization for making the special assessment was insufficient because published in the Omaha daily papers from the 6th to the 12th of September, inclusive, while the meeting was held on the 13th; and because no names of any owners were in this notice; that no findings were made of any special benefits to the real estate in question, and the assessment was therefore unauthorized; and that the assessment was by taxing the costs of the proposed paving according to frontage against the property involved.
Complaint is also made because the repaving contract included a guarantee to keep the pavement in repair for five years, at an additional cost, in accordance with a provision of the city charter, which is claimed to be unconstitutional.
The ansAver on the part of the city, after admitting that the property described is situated in the improvement
It will he observed that the principal complaints against these special tax proceedings are that the original petition was not signed by the owners of a major part of the frontage; that the notice to select material Avas not directed to any OAvners by name; that the council made no declaration of necessity of repaving; that the notice of equalization and assessment, proceedings AAras insufficient, and the equalization not complete, because there Avas no finding that benefits are proportional to the frontage of the several properties.
The first answer of the city is that these special tax proceedings can not be collaterally attacked. This claim it is sought to support by citations of cases relating to political rights from our oavu and other states. It can hardly be maintained as to ex-parte proceedings Avliose object is the subjecting of private property to public use. The general doctrine on this subject seems still to be that cited in Cooley, Taxation (1st ed.), p. 464: “The statute authority must be strictly pursued. This rule is
With regard to the signature of Mrs. Bryant, the district court found that she was the owner of lots 3, 4 and 5 in block 12 in Kountze’s place; that her name was signed to the petition by her husband, D. C. Bryant, and said signature was made by her consent, and was in law and in fact the signature of the owner of said property, as required by law; and that said property is regularly signed for upon said petition by its owner. There is evidence in the record to support these findings, and Mrs. Bryant says the signature to the petition was made by her husband while she was in an adjoining room; but she says it was with her consent, and in full view from the place where she was.
It is claimed that the conferring upon these trustees of “full discretion in the management and control of said property, with the view of increasing its value and deriving the best possible income therefrom,” is a sufficient authority for their signing the petition in question, and that the district court was right in so holding.
In Allen v. City of Portland, 58 Pac. Rep. [Ore.], 509, 516, it was held that the widow, who possessed the life interest and had the management and control of real estate,
As to the requirement of a declaration that the work is necessary, an examination of section 110
This statute refers in the first instance to original paving within 3,000 feet of the court house; the second provision is relative to original paving- outside that limit; and the third provision is that the mayor and city council shall order the work on a petition signed by persons representing the majority of the taxable front feet. It would seem that the ordering of the improvement is mandatory on the filing of the petition. The declaration of the necessity is not made in terms jurisdictional, and is a part of the later proceedings. It seems a quite different provision from that, for instance, of the drainage act, by which the commissioners are required to make a finding as to the necessity of the work, and that the proposed route is the best one, and file it of record, before proceeding further. A large number of cases are cited by counsel for appellants from different states, in which the statute requires that the council shall declare by resolution on their records the necessity of the proposed work. The distinction between such statutes and the one in question here, seems plain. A declaration, in fact,' such as may be presumed, satisfies this statute. One of record is required in the other cases. We prefer in this matter to follow the authority of the supreme court of Massachusetts in Commonwealth v. Abbott, 35 N. E. Rep. [Mass.], 782. See 2 Dillon, Municipal Corporations [4th ed.], sec. 770.
With regard to the complaint as to equalization notices, they were published on September 6 to 12, inclusive, and
A harder question is the effect to be given to the notices, and to the action of the equalization board taken pursuant to them. It has been often enough decided by this court that the statutes conferring powers upon boards of equalization are to be strictly construed. Grant v. Bartholomew, 58 Nebr., 839; Merrill v. Shields, 57 Nebr., 78; Wakeley v. City of Omaha, 58 Nebr., 245; Medland v. Connell, 57 Nebr., 10. It has been held that the board of equalization has no authority to assess special taxes, until it has first determined the amount to be assessed for special benefits. Equitable Trust Co. v. O’Brien, 55 Nebr., 735; Medland v. Connell, 57 Nebr., 10, 14; Smith v. City of Omaha, 49 Nebr., 883. In all of the above cases, however, the decision seems to turn upon the regularity and sufficiency of the notice of the meeting. It does not seem to be held anywhere that the proceedings of any board of equalization are absolutely void for informality in the findings as to special benefits. In the present case the finding made by the board of equalization recites, after stating that all complaints have been examined, that the board “have full and personal knowledge of the character of said improvements, respectively, and special benefits to the lots and real estate respectively, by reason thereof,” and that due notice of the meeting had been given; therefore, “Resolved, that it is the final determination of the city council sitting as a board of equalization that levies of special taxes to cover the cost of the several improvements referred to in said notice and as shown by the plans
No reason for holding that inclusion of a guarantee t© maintain the pavement for five years in the cost of construction vitiates the proceedings, has been given, and that point must be deemed waived.
It is recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Compiled Statutes, ch. 12a.
Cobbey’s Annotated Statutes, sec. 7629.
Cobbey’s Annotated Statutes, sec. 7633.