102 Neb. 849 | Neb. | 1918
In June, 1915, a petition' of property owners was filed with the county hoard of Lancaster county asking for the pavement of the highway lying between the city of Lincoln and the village of College Yiew, known as
The paving was duly done in pursuance of these proceedings, and on the 17th day of July, 1916, the county board assessed against the property of the district the full cost of the improvement as specified in the order creating the "district. This assessment after-wards was objected to by some of the property owners on the ground that they had protested against the assessment, and had not had notice thereof, and an opportunity to be heard, and the county board set aside the assessment under the provision of section 3 of the act of 1915 (Laws 1915, ch. 200): “In cases of omission, mistake, defect, or any other irregularity in the proceedings on any special assessment said board, sitting as a board of equalization, upon giving notice, as provided in the first instance for levying assessments, shall have power to correct such mistake, omission, defect or irregularity, and levy or relevy, as the case may be, a special assessment on. any or all property in the. district, in accordance with -the net
These plaintiffs, as citizens and taxpayers of the county, began this action to enjoin these payments. Certain of the property owners of the district intervened, and contended in the trial court that this second assessment and these payments by the county were legal. The members of the county board, the original defendants, answered, alleging the regularity of the proceedings in the first assessment, and alleging their good faith in the matter, and asking the direction of the court in regard to their duties. The trial court found that the action of the board in setting aside the first assessment was. valid; that the second assessment and proposed payments by the county were unlawful; enjoined the making of such payments; and directed a reassessment. The interveners have appealed. The county attorney has filed a brief in this court on behalf of the county board, maintaining that the judgment of the district court is correct.
The act of 1915, under which this action was brought (Laws 1915, ch. 200), was very properly amended by the act of 1917 (Laws 1917, ch. 152). As amended, it specifically provides: “Such districts shall be created by resolution of the county board, and said board shall in said resolution designate and fix the proportion of the total cost of such work and improvements which shall be paid out of said county paving fund. * * * Provided, however, no such work and improvements shall be finally ordered or constructed unléss a petition shall be signed by the owners - of a majority of the property chargeable with the cost of the improvement
The county board did not have such a plain and definite guide in this case. And the record shows that they acted in the utmost good faith, endeavoring to, protect the rights of the property owners, and the interests of the county and the public generally, to the best of their ability. Their1 resolution was plain that the whole expense of the improvement would be taxed to the property owners. With this knowledge the property owners made no objection, and did not suggest to the board that the cost of the improvement would be more than their property would be benefited, and now, after the improvement has been made and the costs incurred, they seek to have the county pay a substantial part of the cost of the improvement. We have not seen in this record substantial proof that the property of the district generally will not be benefited as much as the total cost of the improvement. These interveners insist that their property is so located that it will not be benefited in the amount taxed against it by the first assessment. If so, that is to be remedied by the apportionment and assessment ordered by the decree of the trial court. If the assessment made by the board is . “illegal, inequitable and unjust,” if it should result in assessing against any lot more than the benefits thereto, section 4 of the act of 1915 affords a remedy.
The judgment of the district court is
Affirmed.