John v. Connell

• Decision Date: 19 March 1902
• Docket Number: 9,373
• Citation: 89 N.W. 806,64 Neb. 233
• Parties: DAVID C. JOHN, APPELLANT, v. WILLIAM J. CONNELL ET AL. APPELLEES
• Court: Nebraska Supreme Court

89 N.W. 806

64 Neb. 233

DAVID C. JOHN, APPELLANT, v. WILLIAM J. CONNELL ET AL. APPELLEES

No. 9,373

Supreme Court of Nebraska

March 19, 1902

APPEAL from the district court for Douglas county. Heard below before POWELL, J. Rehearing of case reported in 61 Neb. 267. Judgment below affirmed in part.

Modified and affirmed.

Henry P. Leavitt, for appellant.

Connell & Ives, contra.

KIRKPATRICK C. HASTINGS and DAY, CC. concur.

OPINION

KIRKPATRICK, C.

This case is again before this court for determination, a rehearing having been allowed. The prior opinion of this court is reported in 61 Neb. 267, 85 N.W. 82. We are asked upon this rehearing to examine only the question concerning the validity of the sewer tax, which the trial court held invalid, and which in the former opinion was held valid It will not be necessary herein to restate the pleadings, issues and the relations of the several parties to the case. Regarding the question now to be determined, this court, in the former opinion, said: "Our examination of the record has not revealed any vital infirmity in the proceeding which resulted in the levy of the sewer tax, and defendant has not pointed out, or even suggested, the existence of any substantial defect in such proceeding. We conclude therefore, that the special sewer tax is valid, and that the court erred in not enforcing it." Appellee, in his motion and brief on rehearing, calls attention to the fact, which before was not brought to the notice of the court, that this question was not properly before the court at the former hearing; the decree of the trial court having been that the sewer tax was invalid, and appellant, John, not having filed his brief here upon this question within the time required by the rules, appellee Connell having had no notice that appellant, John, had filed his brief upon this question out of time. In view of these facts, this rehearing has been granted, and the only point, therefore, requiring reexamination, is whether that portion of the decree of the trial court holding the sewer tax invalid, from which appellant. John, attempted to appeal, was properly reversed, and the special sewer tax held valid.

It is now contended by appellee Connell that the sewer tax was illegal and void for the following reasons: First, that the board of equalization failed to comply with the law in respect to remaining in session for one day, between the hours of 9 A. M. and 5 P. M. to hear complaints regarding the assessment; and that the board of equalization made no finding authorizing the levy by front-footage, and that no final action whatever was taken by the board; second, that no assessment was in existence or had been made at the time the council, sitting as a board of equalization, claimed to have held its meeting; third, that no notice of the meeting of the board of equalization was published as required by law, and that the notice as published was insufficient. These objections, so far as necessary to a correct disposition of the question now before the court, will be taken up in the order named.

The authority to levy the tax complained of is found in section 78, chapter 12a, Complied Statutes, 1893, by the terms of which the city, by its proper officers, is authorized to levy a tax for the construction or reconstruction of sewers or drains within the city limits; the taxes to be assessed against the real estate lying within the sewerage district to the extent of the benefits to such property by reason of the improvement. These benefits are to be determined by the council, sitting as a board of equalization, after notice to property owners, as in the case of other special assessments. Section 85 of the same act provides: "In all cases before any special taxes that may be levied, except for constructing wood sidewalks, shall be finally levied, it shall be the duty of the council to sit as a board of equalization for the purpose of equalizing any such proposed levy of special taxes or assessments and correcting any error therein, giving notice of such sitting in the same manner as above provided in this section, stating in such notice the purpose for which it will sit, and it shall continue such session not less than one day, from nine A. M to five P. M. and at such session it shall hear all complaints," etc. It is disclosed by the record in this case that a meeting of the city council of the city of Omaha...