John v. Connell

• Decision Date: 04 February 1904
• Docket Number: 9,373
• Citation: 98 N.W. 457,71 Neb. 10
• Parties: DAVID C. JOHN, APPELLANT, v. WILLIAM J. CONNELL ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

98 N.W. 457

71 Neb. 10

DAVID C. JOHN, APPELLANT, v. WILLIAM J. CONNELL ET AL., APPELLEES. ^[*]

No. 9,373

Supreme Court of Nebraska

February 4, 1904

APPEAL from the district court for Douglas county: CLINTON N POWELL, JUDGE. Reversed in part.

Judgment reversed in part.

H. P Leavitt, for appellant.

Connell & Ives, contra.

OPINION

HOLCOMB, C. J.

The present litigation, which has dragged its weary length over a considerable period of time, has, as we view the record become restricted to an inquiry relating solely to the validity of a certain special assessment of sewer taxes on the real estate involved in the controversy, for benefits received. In the first opinion of the court, the question not being fully and clearly presented, it was held that no sufficient objection was shown to render the taxes invalid. On a rehearing before one of the departments of the commissioners, granted solely to investigate further this one question, the subject was inquired into and the special assessment of sewer taxes was held invalid and unenforceable on two grounds. One ground was that the board of equalization, required to pass upon and adjust special assessments of this character, was not shown by the record to have held a session at the time and place given in the published notice, as required by statute, and that the proceedings thereafter had were thereby invalidated. The other ground was that there was no finding by the board of equalization that the benefits to be derived from the public improvement were equal and uniform as to all the lots and tracts to be affected, as is required by statute. A reinvestigation of the case, having these two questions specially in view, results in a contrary conclusion to that last expressed.

On the first point, the opinion last prepared follows Medland v. Linton, 60 Neb. 249, 82 N.W. 866. That case, however, is to be distinguished, because the special assessment in the case at bar was made under a statute materially differing from the one construed in the Medland case. The original statute provided unequivocally and without qualification that the board of equalization must hold a session for at least one day, between the hours of 9 A. M. and 5 P. M., to correct errors, hear complaints, adjust inequalities, etc., before a special assessment for a public improvement could be levied. Following prior decisions, it was decided in the Medland case that the record must affirmatively show the holding of such a meeting in pursuance of a published notice, at the place and for the time stated, and that such proceeding was an essential condition to a valid exercise of the taxing power. The statute as thus construed was afterwards amended (sec. 132, ch. 12a, Compiled Statutes, 1893), so that, when the action was taken in the case at bar which is complained of, this section of the statute, among other things, provided:

"When sitting as a board of equalization, the council may adopt such reasonable rules as to the manner of presenting complaints and applying for remedy and relief as shall seem just. It shall not invalidate or prejudice the proceedings of such board that a majority of members thereof do not, after organization by a majority, continue present at the advertised place of sitting, during the advertised hours of sitting. Provided, the city clerk or some member of said board shall be present to receive complaints, applications, etc., and give information; and Provided, no final action shall be taken by such board except by a majority of all the members elected to the city council, comprising the same and in open session."

The record in the case at bar shows that, in pursuance of a regularly published notice, the council met as a board of equalization at the office of the city clerk and duly organized by electing a chairman. The record then discloses that the call or notice of its meeting was incorporated as a part of the proceedings; several petitions were received from property owners relating to other property than that here involved, and action taken thereon, the nature of which is not disclosed by the record. It is then recited "Motion: That board take a recess subject to call of the chairman. Attest. John Groves, City Clerk." The next meeting of the council as a board of equalization was held on August 11 following, at which time, final action was taken on the special assessment complained of, together with numerous other matters then pending before the board. The record, as we construe it, affirmatively shows that a majority of the council sitting as a board of equalization met and organized, at the time and place, and in pursuance of the regularly published notice, and met at the office of the city clerk, who was present to record the proceedings of the board and perform his duties as such. Some business properly pertaining to the meeting was transacted. Just how long, or covering what period of time, the board remained in session is undisclosed by the record. After the transaction of all or some of the business then before it, the board took a recess, subject to the call of the chairman. It is not necessary, says the statute, that a majority of the board continue present after they have regularly convened and organized, provided the city clerk or some member of said board shall be present to receive complaints, etc., and provided that final action be taken only by a majority and in open session. The record, we are of the opinion, discloses with sufficient...