100 Neb. 416 | Neb. | 1916
This is a proceeding in mandamus to compel the city of Omaha to carry out certain paying contracts entered into by the city of South Omaha before the consolidation of the two cities. Pour paving districts are involved, Nos. 128, 130, 133, and 134.
It appears that after the districts were created the city cleric of South Omaha, pursuant to the charter, gave to the property owner’s in the several districts notice by publication that the 20 days allowed the property owners in which to designate material, or to change any designation previously made, would not expire in any of the districts until after June 21, 1915, the date of the consolidation of the two cities; that in each of said districts petitions designating the materials were filed, after notice was given, prior to the consolidation and within the 20 days allowed for the selection of material or to change the designation thereof; that, before the consolidation, the city council of South Omaha adopted resolutions awarding to the James J. Parks Company a contract for the performance of the work, and the contract, together with the bond, was
Upon the trial a writ of mandamus was awarded as prayed. A motion for a rehearing was. denied, and the respondents have appealed.
Section 3, ch. 212, Laws 1915, provides, among other things: “And the metropolitan- city shall succeed to all the property and property rights of every kind, contracts, obligations and choses in action of every kind held by or belonging to the city or village consolidated with it, and the metropolitan city shall be liable for and recognize, assume and carry out all valid contracts, obligations, franchises and licenses of any such city or village so consolidated with it.”
The foregoing language indicates very clearly that the consolidated city receives the property, property rights, and every kind of contract or obligation or chose in action held by the city or village consolidated with the metropolitan city. It also clearly shows that the metropolitan city, in addition to receiving the property of the village or city incorporated with it, assumes to carry out all valid contracts, obligations, franchises and licenses of the city or village consolidated with it. If the city of South Omaha had incurred an obligation by reason of what it did, then it is incumbent upon the city of Omaha to carry
Section 4719, Rev. St. 1913, provides: “The property owners of record within any district .shall have tAventy days from the last date of publication of the bids for any improvement, to designate by petition, to be filed with the city clerk, the specific material selected from those designated in the bids received, which they desire used in improving of the street or other public thoroughfare within said district, and, in case the record owners of the majority of the taxable foot frontage of property abutting upon said street or other public thoroughfare to be improved, file their petition within such twenty days, designating the specific material which they desire used in making such improvement, then in that event, the mayor and city council shall order said improvements'made with the specific material so designated; but, in case there is no petition filed by the owners of a majority of the foot frontage of taxable property as aforesaid, within said twenty days, then the mayor and council shall by resolution, designate
The language of the section indicates that it was in the mind of the legislators when they passed the act that the abutting lot owners might not make any request with respect to the kind of material to be used, and then it would be for the council to determine what kind of material it would use. We have not been told that any objection has been made concerning the material to be used. It also appears that the council acted upon the petition. If no objection was made by the abutting lot owners at that time or since, then in any event the order of the council of South Omaha must stand.
Many authorities are cited in the brief of counsel for .the appellees showing that the abutting lot owners have no right to withdraw after the action of the council. In this case the council did all that could be done prior to the expiration of the 20 days. If the city of South Omaha could make a contract, then it has been made, and it is the duty of the city of Omaha to carry it out. Apparently, this is a case where the abutting property owners desire that for which they petitioned. We are of the opinion that the contracts. made were binding upon the city of South Omaha at the time of the consolidation, and, if so, they must be assumed by Omaha.
Section 6 of the act providing for the consolidation of South Omaha with the city of Omaha, being a part of chapter 212, Laws 1915, provides, in substance, that all taxes or special assessments which any city or village consolidated may have been authorized to levy or assess, but which are not “levied or assessed at the time of such consolidation, for any kind of public improvements” in process of construction or contracted for, may be levied or assessed by such metropolitan city as consolidated. The following cases seem to adopt the principle involved: City of New Orleans v. Stewart, 18 La. Ann. 710; Irwin v. Mayor, 57 Ala. 6; Pavey v. Braddock, 170 Ind. 178.
The judgment of the district court is
Affirmed.