Creighton University v. City of Omaha

• Citation: 136 N.W. 829,91 Neb. 486
• Decision Date: 29 May 1912
• Docket Number: 16,701
• Parties: CREIGHTON UNIVERSITY, APPELLANT, v. CITY OF OMAHA, APPELLEE
• Court: Nebraska Supreme Court

136 N.W. 829

91 Neb. 486

CREIGHTON UNIVERSITY, APPELLANT, v. CITY OF OMAHA, APPELLEE

No. 16,701

Supreme Court of Nebraska

May 29, 1912

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

T. J Mahoney and J. A. C. Kennedy, for appellant.

John A Rine, W. C. Lambert and Clinton Brome, contra.

REESE, C. J. LETTON, J., not sitting. FAWCETT, J., concurring. SEDGWICK, J., HAMER, J., dissenting.

OPINION

REESE, C. J.

The following facts are shown by the transcript in this cause: On the 4th day of August, 1908, the city council of the city of Omaha passed an ordinance "establishing the grade of Twenty-fourth street from Burt street to Cass street in the city of Omaha." For the purpose of the decision of the question presented, it is not deemed necessary to notice the provisions of the ordinance more than to say that by it the grade of Twenty-fourth street within the points named appears to have been duly established; the ordinance taking immediate effect. On the 16th day of March, 1909, another ordinance was passed, and later approved, declaring the necessity of grading Twenty-fourth street from Burt street to Cass street, and appointing three members of the city council appraisers to assess and determine the damages, if any, to the property owners which might be caused by such grading, the city to pay one-half the cost and expense thereof. By the ordinance three members were named as such appraisers to appraise, assess and determine the damages to property owners which might be caused by the grading of the street. It was provided that the ordinance should take effect upon its passage. Presumably on the 26th day of April, 1909 (although the date of filing is not shown), plaintiff presented to the committee on appraisal of damages its claim for damages in the sum of $ 22,800, the items of which are set out in the claim. On May 18, 1909, the city council met in regular session, when the committee on appraisal of damages to plaintiff's property made its report assessing the damages at $ 700, remaining in session one hour at the time of making the assessment. There is no showing in the record that any notice of this meeting of the committee or what its action had been or would be was given to plaintiff. The report was immediately approved by the council. On May 25, 1909, the council was again in session, when the mayor reported that he had approved the report of the committee. June 2, 1909, an appeal bond was filed and approved by the city clerk. June 8, 1909 (presumably), a notice of appeal was given the mayor and council and city clerk, although we find no evidence of its service. It is probable that no such notice was necessary. A transcript of the proceedings of the council was prepared by the city clerk, dated June 10, 1909, and filed in the office of the clerk of the district court on the same day. On the 2d day of July of the same year defendant (city of Omaha) filed in the district court its motion to dismiss the appeal, and objecting to the jurisdiction of the court upon the ground that "no petition was filed as required by section 213 of the city charter of the city of Omaha." On the 2d day of December, 1909, plaintiff filed its petition. On the 26th day of March, 1910, the motion to dismiss was sustained, and the appeal dismissed. Plaintiff appeals.

The cause has been elaborately briefed on both sides. But, as we view the question presented, it is not difficult of solution. The cause turns upon the provisions of sections 212 and 213 of the Omaha charter in force in 1909 (Comp. St. 1909, ch. 12a). Section 212 need not be here copied, as, so far as it relates to the subject before us, it simply gives the right of appeal in cases of this kind. Section 213 is as follows: "Whenever the right of appeal is conferred by this act, the procedure unless otherwise provided shall be substantially as follows: The claimant or appellant shall, within twenty days from the date of the order complained of, execute a bond to such city with sufficient surety to be approved by the clerk, conditioned for the faithful prosecution of such appeal and the payment of all costs adjudged against the appellant. Said bond shall be filed in the office of the city clerk. It shall be the duty of the city clerk, on payment or tender to him of the cost of the transcript, at the rate of ten cents per hundred words, to prepare a complete transcript of the proceedings of the city relating to their decision thereon. It shall be the duty of the claimant or appellant to file a petition in the district court as in the commencement of an action within thirty days from date of the order or award appealed from, and he shall also file such transcript before answer day. The proceedings of the district court shall thereafter be the same as on appeal from the county board. Any taxpayer may appeal from the allowance of any claim against the city by giving a bond and complying with the foregoing provisions. Provided, that the foregoing provisions shall not be so construed as to prevent the city council from once reconsidering their action on any claim or award upon ten days' notice to the parties interested."

The inquiry arises as to what step it is that is to be taken by an appellant in order to confer jurisdiction upon the district court? We take it as not to be questioned that the jurisdiction is obtained by the filing of some pleading or process therein. As appears therein, the section under consideration provides: "It shall be the duty of the claimant or appellant to file a petition in the district court as in the commencement of an action within thirty days from date of the order or award appealed from," and he shall file the transcript before answer day. Thereafter the proceedings shall be the same as appeals from the county board. This provides a departure from the law of ordinary appeals. It is not the filing of the transcript that gives jurisdiction, for it may be filed at any time before answer day. The petition is the first filing to be made and that must be filed within the 30 days named. Until that is done the case is not in court nor within its jurisdiction. This seems to be the plain provision of the section. It is within the power of the legislature to make the change from the usual course of procedure. The provision is a special one, probably enacted for the purpose of expediting the settlement of questions which may arise in the matter of grading and paving streets. We can see no way of escape from its direction.

Our attention is called to the use of the word "substantially" near the beginning of the section. We are unable to see how it can be construed to mean that the requirement that the petition shall be filed in the district court within 30 days after the order of the council, which was made on the 18th day of May, could be even substantially complied with by filing the petition on the 2d day of the following December. True, the transcript was filed within the 30 days, but we are unable to see how...