76 Neb. 320 | Neb. | 1906
The proper authorities instituted an action in the district court for Douglas county under the scavenger laws of 1903 for the sale of several tracts of land for the payment of state and county taxes, and the general and special taxes levied for municipal purposes by the city of Omaha. Among the tracts of land are several lots belonging to the appellant, who filed his answer in the district court, objecting to the sale of his property for the payment of certain special taxes levied thereon by the city council. Ordinance 4,244 of the city of Omaha established a mode of procedure for the construction of sidewalks in said city. It provided in substance that, whenever the city council and mayor deemed it expedient, they could require the construction of sidewalks in front of or adjacent to any premises, along any street in the city, by resolution; that upon the passage of a resolution, notice should be served on the owner of the premises adjacent to or abutting such sidewalk; and that said notice should state that after the expiration of 15 days from the service thereof the sidewalk ordered to be laid would be laid by the contractor holding a contract with the city of Omaha and that the costs of the laying of such sidewalk would be assessed upon the property described. In the event that the owner was a nonresident of the city of Omaha, the ordinance provided that such notice should be published in the official papers of the city for ten days,
At the time of the construction of the sidewalks in controversy, appellant was a nonresident of the city of Omaha. The affidavit showing publication of notice to appellant indicated that it had been published but six days,, and this appellant contends is conclusive as to the publication. Neither the statute nor the ordinance makes it necessary as a condition precedent to the construction of the sidewalks by the city, nor the taxation of the property, that the proof of publication be filed; the ordinance does provide that the affidavit shall be filed and preserved in the office of the board of public works, but it was the publication of the notice, and not the filing of the affidavit, which conferred jurisdiction upon the city authorities to construct the sidewalk and levy the taxes complained of. The affidavit was presumptive evidence, but not conclusive as to the publication of the notice. The ordinance provided a mode which is sufficient, but not exclusive. The rule as to notices required by city ordinances is no more stringent than the rule governing notices required by statutes. In the case of Larimer v. Wallace, 36 Neb. 444, it is held: “Proof by affidavits of posting public notices is not exclusive. The statute merely provides a mode which is sufficient, but does not provide that it shall supersede all other forms of proof.” And as the evidence introduced by the appellee shows the publication of the notice for the time required by the ordinance, we are convinced that the failure to file the affidavit with the city authorities as provided by the ordinance does not constitute a reason for declaring that the city council was without jurisdiction to levy the tax.
The last publication of the notice was on November 3, and notified the appellant that he would be required to construct a sidewalk on or before November 9, or that the city authorities would construct the same as provided by law, and levy a special assessment upon his lots to pay the
“Appellant now argues that, though the notice informed the property OAvners that the 30 days Avould expire at noon on August 31, this Avas a mere irregularity, because the charter, the ordinance and the notice itself informed them that they had 30 days from the publication of the notice within which to designate said material; citing Armstrong v. Middlestadt, 22 Neb. 711, and Scarborough v. Myrick, 47 Neb. 794. We are of the opinion that this argument is sound. That if, in fact, 30 days had elapsed before the council took any action upon the matter, the recital in the notice that the time Avould expire several days before the 30 days elapsed Avould be merely an irregularity, and would not prevent the council from acquiring jurisdiction.”
Applying this rule to the case at bar, it follows that the notice was sufficient to inform the appellant that, in the event he did not construct the improvements required Avithin the time provided by the ordinance, the city would do so and tax his property for the payment thereof. After the expiration of 15 days from the last publication the city
By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
AFFIRMED.
