69 Neb. 577 | Neb. | 1903
Georgia A. Trephagen, II. L. Wilton, Mike Higgins and Kornelia Adamowicz, appellees, commenced this action In
That the city had pretended to assess certain special taxes agaiiist their specific property for paving, curbing and guttering that part of “L” street from the west end of the viaduct to the west line of 33d street, situated in paving district No. 6 of said city; that prior to the attempted passage and approval of the ordinance ordering said paving, tliere had never been filed with the clerk of said city, or presented to the city council, a petition signed by the property owners representing a majority of the front feet or area within the limits of said paving district, as defined in said ordinance; that a paper called a petition was filed xvith the said clerk requesting that the street be paved Avith Colorado sandstone on six inches of sand; that the said paper Avas not a petition, but was a mere selection of materials, and was not signed by the owners of a majority of either the front feet or area of the real estate Avithin said district; that there appears upon said paper the name of Joseph Schlitz RreAving Company, Ed. Ainscoxv and B. D. Mattice, but neither of said parties OAvned any real estate within said district at the date thereof, nor at the time defendant passe1,d the ordinance ordering the said street to be paved; that there also appears upon said paper the name of the Union Stock Yards Company, by W. N. Babcock, G. M.; and it was alleged in the petition that said Babcock had no authority to sign the name of the Union Stock Yards Company, and the same was placed upon said paper without the authority of the said corporation, and'Should not be considered as a lawful signature; that no other paper purporting to be signed by property owners in said district was ever filed with the clerk, pr with the city council in connection with the pav
For their second cause of action, appellees alleged:
That the city attempted to pass a special ordinance numbered 134 by the terms of which lot 7, block 357, was charged and assessed with the sum of $35.53 for the costs of the construction of an alleged sidewalk in front of said property; that, prior to the passage; of said ordinance, no notice had been given to the owners of said property, and no notice had been published of said proposed assessment; that the owners had never been required to construct the sidewalk or notified that a sidewalk had been ordered, and had never been given any opportunity to construct the same, and that all of the proceedings of said city council with reference thereto were null and void.
For their third cause of action the appellees alleged:
That the city attempted to pass, and, thereafter, there was approved by the mayor of said city, a special ordinance, No. 87, by the terms of which lot 7, block 357, was charged and assessed with the sum of $19.64, as an alleged garbage assessment, for removing garbage from said prop
The appellant, by its answer, denied each and every allegation contained in the petition, except those expressly admitted; set up a plea of the statute of limitations; and, for a third defense, contained matters supposed to create an equitable estoppel. The reply was a general denial. The cause was duly tried, and the court found generally in favor of the appellees and rendered a decree canceling the alleged special taxes, restraining the collection thereof and removing the apparent cloud from the title to the lots described in the petition. From this decree the city appealed, and now contends that the court erred in its findings and judgment as to each of the several causes of action set forth in the petition, and that the evidence is not sufficient to sustain the decree.
The rule is, that in order to confia’ jurisdiction upon a city council to order paving and curbing, and authorize the assessment of the< cost thereof against the abutting real estate, a petition therefor must be presented, signed by the owners of a majority of the feet frontage upon the street to be thus improved; and this rule is so well settled in this state that it is unnecessary to cite authorities in support of it. In fact, the appellant concedes this to be the rule. It may be further said that the burden is on the city seeking to enforce such a tax to show that all the proceedings made essential by the statute — which is the city charter — leading up to the special assessment, have been strictly followed; that there is no presumption coming to the aid of the city which seeks to enforce the lien of a special tax. Merrill v. Shields, 57 Neb. 78; Smith v. City of Omaha, 49 Neb. 883.
It is a recognized rule of construction, especially ap
It was stipulated, by the parties on the trial in the court beloAV, that the property oAvned by the Union Stock Yards Company constituted a majority of the feet frontage abutting on the street paved, consequently the validity of the1 petition turns upon the purported signature of that corporation thereto. Evidence Avas introduced by the appellant which shoAved that the Union Stock Yards Company Avas a corporation organized for the purpose of conducting a general stock yards business; that the business of said corporation Avas the yarding, feeding and taking care of cattle, hogs, sheep and horses that Avere consigned for sale to the South Omaha market. It Avas further made to appear that W. N. Babcock, Avho signed the name of the company to the paper or petition in question, Avas at that time its general manager. The appellant, recognizing the fact that it devolved upon it to prove that Babcock had authority to sign the petition, introduced in evidence certain parts of the articles of incorporation under Avliich the Union Stock Yards Company Avas organized, Avhich we quote as folloAvs:
“The affairs of this corporation shall be conducted by a board of directors of seven members, each of whom shall hold office for one year, and until his successor is elected and takes his seat at the board; they shall elect a president, vice-president, secretary and treasurer; they shall also appoint such superintendénts, managers and agents as, from time to time, shall be deemed necessary for the transaction of the business of this corporation. The board of directors, at their regular meeting after each annual*582 election, shall elect by ballot a president, vice-president, and may also elect a secretary and treasurer, and may continue the then incumbent in office by resolution. The board of directors shall have the whole charge and management of the property and effects of the company, and they may delegate the power to the executive committee to do any and all acts which the board is authorized to do, except such acts as by law, or by these by-laws, must be done by the board itself. The board shall have the power, in the absence of' the president and vice-president, to appoint a chairman pro tempore, and, during the prolonged absence of the president or other officers, to appoint substitutes pro tempore. The board of directors shall prescribe the duties and powers of the secretary and treasurer, and all subordinate officers and agents, and shall make all needful rules and regulations not inconsistent with the articles of incorporation for the transfer of stock of the company, the issuing of certificates of stock, keeping the records and accounts of the company, the management and disposition in particular of the stock, property, estate and effect's of the company, and shall have power to delegate authority to do and perform specific acts not inconsistent with the articles of incorporation to special committees to be appointed by the board or presiding officer, at the option of the board.”
It can not be said that these provisions authorized Babcock, as general manager of the corporation, to sign the paper or petition in question. No evidence was introduced to show, or which tended to show, that the board of directors had ever authorized him to do so. We can not presume that Babcock had power to sign the petition and thereby bind the corporation. • It is true that a' corporation can act only by its agents, and the presumption is that an act pertaining to its ordinary business,- when performed by its president, secretary or general manager, is legally done and is binding upon the corporation, yet no such presumption prevails, when the act done by such officers does not fall within the scope of the powers con
On the question of the equalization of the assessment for paving and curbing, it appears from the records of the city council, which are in evidence, that Friday, January 7, 1892, was the time fixed for that purpose; no meeting was held on that day, but it appears that at a meeting held on January 11, following, it was moved that the council sit as a board of equalization, on January 22 and 23, 1892, and the motion was carried. It further appears that, at the meeting of January 22, a recess was immediately taken until January 23, at 4 o’clock P. M., and the city clerk was instructed to receive all complaints in writing; that on the 23d the meeting was called to order and, on a motion- made by one of the councilmen, an adjournment was taken to January 25, 1892; that the adjourned meeting, so far as the record shows, was never held, and therefore the court was right in its finding that no equalization of this paving assessment had ever been made, and that the city council never held a proper meeting for that purpose.
We therefore conclude that the finding and judgment of
As to the sidewalk assessment; it appears that no legal notice of the meeting of the board of equalization to make such assessment was ever given or published. The affidavit made by the publisher of the Daily Tribune, the newspaper in which publication was attempted, showed that the notice of the pioposed meeting for that purpose was published from October 13 to October 19, 1898; and it appears that no other notice was ever published or given to the appellees. The statute in force, at that time, relating, to the construction of wooden sidewalks, required that the assessment to pay the cost thereof, should be made by the city council, at any meeting, by a resolution, fixing the cost of the construction or repairs of such work along the lots adjacent thereto as a special assessment thereon, and the amount charged against the same which, with the vote thereon by yeas and nays, was required to be spread at large upon the minutes; it was provided that notice of the time of holding such meeting and the purpose for which it was to be held, should be published in some newspaper published and of general circulation in the city, at least ten days before holding the same; or, in lieu thereof, personal service might have been made on the persons owning or occupying the property to be assessed. The appellant failed to show that personal service was ever made on the appellees, and it appearing that the notice in question Avas published only six days instead of ten, it follows’that there Avas no such substantial compliance with the statute as avouIc! authorize the city to levy the special tax, for the construction of the sidewalk, complained of, and make it a specific charge on the abutting real estate.
It further appears that by special ordinance, No. 87, the appellant levied a special tax amounting to $11.10 on lot 7, block 357, South Omaha, for the purpose of paying for the cost of removing garbage therefrom. The petition charges that there Avas no authority of laAV for this special
The statute not having conferred authority on the city, authorizing it to assess and levy a special garbage tax, and make it a specific charge on the lot in question, Ave conclude that such tax Avas void. The foregoing questions being the only ones argued by counsel for the appellant in his brief, no others will be considered. A careful review' of the record convinces us that the findings and judgment of the trial court vare amply sustained by the evidence and accord Avith Avell established principles of law'. We therefore recommend that the judgment appealed from be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.