73 Neb. 321 | Neb. | 1905
This action mas brought by Fred E. Wead and others, as plaintiffs, against the city of Omaha to enjoin the collection of certain assessments for paving levied in paving and improvement districts 368, 225 and 542 against the property described in the petition. The district court found in favor of the. plaintiffs and entered a decree accordingly. The city of Omaha complains of said decree only so far as it affects the assessments levied in district 542, and prosecutes this appeal to reverse the action of the trial court so far as it adjudges the assessment levied in that district, to be Aroid. A number of irregularities are set forth in the petition of the plaintiff Avith reference to the creation of said district and the levy of the. special assessment therein, but since the district court found for the appellant as to such matters and there is no cross-appeal here, they will not be considered. The ground upon which the district court found for the appellee. AAras “that tiie assessment which Avas levied upon the plaintiff’s property to pay for the cost of paving and curbing in improvement district 542 Avas inequitable and grossly unjust ; that the assessment levied upon the greater portion of the property described in the petition Avas practically the full value thereof after the improvement had been made; that as to the balance it was grossly excessive and unjust.” The evidence in the case supports the finding of the district court that the assessment was inequitable and grossly unjust, and that it Avas practically the full value of the property after the improvements had been made. The appellant city contends that this is a collateral proceeding; that there is neither allegation nor proof in the record that the assessments Avere fraudulently or corruptly made, and that since the board of equalization had jurisdiction to determine the benefits its finding is final and conclusive in a collateral attack.
We have repeatedly - held that an equalization board Avhen properly in session, with due notice given, acts
“This provision, in effect, amounts to a declaration*324 that the action of the city council in finding that the property is benefited to the full extent of the amount levied, in order to justify an assessment per foot frontage, can be reviewed for fraud, gross injustice or mistake. The taxpayer has notice of the sitting of the city council to be held for the purpose of equalizing and making the levy, and if he is dissatisfied with the action taken concerning the assessment by front foot, it is his duty to have such action reviewed by a proper proceeding, and if he fails to take such action, he cannot be heard in a proceeding by injunction to allege that the tax is void for failure of the council to make the finding referred to.”
Taking this language in connection with the facts in the case in which it was used, we have no fault to find with it. But we think that, in so far as it may imply, if it does so imply, that error is the only remedy for fraud, gross injustice or mistake in the findings made by the board of equalization, the statement is too broad as a general proposition.
It is urged by the appellant that the provisions of section 164 of the city charter, a part of which section provides, “No> court shall entertain any complaint that the party was authorized to make, and did not make to the city council sitting as a board of equalization, nor any complaint not specified in said notice, fully enough to advise the city of the exact nature thereof; nor any complaint that does not go to the ground work, equity and justice of the tax,” prevent any person from maintaining any action complaining of the gross injustice of a special tax unless he had first made complaint to the board of equalization. We think this position is untenable. If the party injured, before he could be heard upon the question of whether a gross injustice had been done to him by the action of the board, would be compelled to present his complaint to that body, so also under these provisions, where the board had acted fraudulently, or where it had acted by mistake, the person injured would be debarred of any remedy unless he had first presented his complaint
“As to whether he was benefited or not, is a question which should address itself to the discretion of the municipal authorities. Their judgment upon this subject is ordinarily, except in the most extreme cases, conclusive; but, as we have before stated, it is not allowable that the municipal authorities, under the guise of a public improvement, should arbitrarily deprive the citizen of his estate. If, therefore, in the levy of such assessments, the cost of the improvement be so disproportioned to the value of the estate sought to be improved, as that the levy of the assessment amounts to a virtual confiscation of the-lot owner’s property, such assessment cannot be upheld as a legal or valid exercise of the power to tax for such improvements.” As to when a court of equity is at liberty to interfere, that court then say: “The exact extent of the benefit necessary to uphold such an assessment is incapable of definition. But it may be asserted with perfect confidence, that the present is one of those extreme cases of such doubtful benefit and probable spoliation as will justify the interference of a court of equity in order to prevent the citizen from being arbitrarily deprived of his property.” City of Atlanta v. Hamlein, 96 Ga. 381.
It was argued at the hearing that the plaintiff was not entitled to maintain his action for the reason that it was his duty, before he was entitled to the interposition of a court of equity in his behalf, to come into court with clean hands and offer to do equity by tendering to the city the amount equal to the special benefits which he had actually received by the improvement. In a case of this kind the maxim that he who seeks equity must do equity should be applied, if possible, and in a number of cases this court has applied this principle where it is sought to
As to the argument that the property received no benefit, the petition alleges “that said assessment, if valid, would have been practically confiscation of all the real estate in said improvement district lying west of the Missouri Pacific right of way; * * * that said real estate west of said right of way was not and is not benefited to exceed the sum of $5 for each 50 feet abutting on said street, and the said real estate was not and is not able to bear a larger assessment for said purposes.” These allegations are, in substance, an admission that such real estate was benefited to the extent of $5 for each lot, and show at least that the appellee has been able to estimate the benefit which each lot received.
As to the second argument — -that it would be a hopeless task for the court to readjust the scheme of assessment— it is sufficient to say that this is not required of the court. The whole extent to which it can go in the assessment of the property is to ascertain the special benefits which each particrilar tract of land involved in this suit received by reason of the improvement, and to charge each tract with that amount. If the, city authorities have caused improvements to be made in front of the property which cost a sum in excess of the special benefits received, such excess must be borne by the city at large and not alone by the owners of the property within the district.
In Wells v. Western Paving and Supply Co., 96 Wis. 116, 70 N. W. 1071, it is said: “The decisions on this line may not be in entire harmony, but the foregoing, and others hereafter referred to, clearly show that in the main they support the rule that, where a proper assessment of benefits has been made, or the groundwork for a proper apportionment of the expense of the improvement has been legally determined, errors causing an excessive apportionment of the cost of such improvement will not defeat the whole tax in equity.” And the court concludes, “When, as in this case, the statutory requisites to the assessment of a tax for a street improvement upon abutting property are all complied with up to the time of filing the estimate or specifications for letting the work— that is, when the assessment of benefits has been in all respects legally made, so as to determine a proper basis upon which to apportion the cost of the improvement properly chargeable to abutting property — and the subsequent proceedings result in charging such property an excessive amount for any cause, the owner cannot wait till the improvement is completed and his property received the full benefit thereof, and then screen himself from the entire tax because of the illegal excess. If such excess can be determined by mere computation, or without proof, failure to tender or offer to pay the balance before suit will be fatal to any claim for costs, and failure to plead an offer to pay, fatal to the cause of action; but if such excess cannot be determined by computation, and without proof, the court should determine the same, as near as practicable, to a reasonable certainty, from the evidence produced on the trial, and require the payment of the balance as terms of granting relief against such excess.” See Barker v. City of Omaha, 16 Neb. 269; Darst v. Griffin, 31 Neb. 668.
It appears that the tax has been laid upon certain unsubdivided tracts of real estate to a greater depth than the average depth to which the subdivided lands have been assessed. The district court, hoAvever, found that this was not a jurisdictional defect, and cannot be taken advantage of collaterally in this proceeding. In holding that this matter could not be examined into in this proceeding we think the court erred, and that it was within the jurisdiction of that court to have ascertained the average, depth to which the unsubdivided land should have been assessed, to have held the lien valid as to this portion, and to have declared the assessment void as to the excess.
No attack was apparently made upon the petition upon the ground that the plaintiff failed to offer to do equity until the final argument in this court, and at this stage of the case we believe that the interests of justice would best be subserved by remanding the cause to the district court for further proceedings in accordance Avith this opinion.
Reversed.