Sioux City Bridge Co. v. City of South Sioux City

112 Neb. 271 | Neb. | 1924

Rose, J.

These suits were brought to prevent officers of South Sioux City and the county treasurer of Dakota county from collecting paving assessments levied by South Sioux City against property of plaintiffs therein. Injunctions were sought on the ground that the assessments were void, because the city in attempting to authorize the paving and in levying assessments for special benefits proceeded under what is called “Ordinance No. 122,” which never went into effect. Defendants resisted the applications for injunctions on the ground that ordinance No. 122 was valid and that the proceedings thereunder were regular. The trial court upheld the city ordinance and dismissed the suits. Plaintiffs. appealed.

The decision is controlled by Rooney v. City of South Sioux City, 111 Neb. 1. Though it was therein held, for reasons stated in the former opinion, that the assessments

were void because ordinance No. 122 never went into effect, it is nevertheless argued that an ordinance was unnecessary and that the affirmative action taken was authority for what was done by the city. The fallacy in this argument is the failure to recognize the proposition that the ordinance, according to its own terms, was to become effective > only upon the approval of the mayor, an unperformed official act, and that this infirmity inheres in the proceedings of the council. It is therefore unnecessary to decide whether a valid ordinance is required, and that question is not determined.

It is argued further that the proceedings authorizing the paving and the assessments therefor are valid under ordinance No. 121, if ordinance No. 122 fails. The answer to this proposition is that the council proceeded with the improvement and defended these suits under ordinance No. 122. Ordinance No. 121, therefore, is not properly in issue. On the record presented the injunctions were erroneously denied. It follows that the judgment is reversed and the cause remanded for further proceedings, but with leave to defendants, if so advised, to amend their answers.

Reversed.

Note — See Municipal Corporations, 28 Cyc. p. 1185.