Grant v. Bartholomew

• Decision Date: 21 September 1899
• Citation: 80 N.W. 45,58 Neb. 839
• Parties: GRANT v. BARTHOLOMEW ET AL.
• Court: Nebraska Supreme Court

58 Neb. 839

80 N.W. 45

GRANT

v.BARTHOLOMEW ET AL.

Supreme Court of Nebraska.

Sept. 21, 1899.

Syllabus by the Court.

1. The party who asserts and seeks the foreclosure or enforcement of the lien of special assessments or taxes has the burden of the proof or establishment of their validity.

2. Joining in a petition for the paving of a street is not a waiver of the compliance with statutory prescriptions relative to the mode of assessments and levies of taxes to pay for the work.

3. Statutes in regard to powers and duties of boards of equalization are to be strictly construed, and, in the exercise of their powers and duties, the mode of procedure prescribed must be followed.

4. Held, that there was a failure of proof to show a compliance with stated statutory prerequisites to the assessments and levies of certain special taxes involved herein.

On rehearing. Modified.

For former opinion, see 78 N. W. 314.

HARRISON, C. J.

In this, an action by the assignee of a tax-sale certificate to foreclose the lien of taxes, the relief sought was denied in the district court, and on appeal to this court the decree was reversed, and the cause remanded, not for a retrial, but with directions for a decree. A rehearing was granted on motion of the appellee, not for reargument and further examination of questions involved in regard to the general taxes, but to adjust the contentions relative to some special assessments. For statement of the case and former adjudications, see Grant v. Bartholomew, 57 Neb. 673, 78 N. W. 314.

It has been decided that he who asserts and seeks the enforcement of a lien of special assessments or taxes has the burden of the proof or establishment of their validity. Trust Co. v. O'Brien, 55 Neb. 735, 76 N. W. 417;Smith v. City of Omaha, 49 Neb. 883, 69 N. W. 402;Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524;Merrill v. Shields, 57 Neb. 78, 77 N. W. 368. It has also been determined that the fact that a party joins in a petition for the paving of a street does not constitute a waiver of compliance with statutory requirements prescribing the method of assessment and levy of taxes to pay for the work. Wakeley v. City of Omaha, 57 Neb. ___, 78 N. W. 511. There were ten items of special taxes declared upon in the petition in the action,--two for paving in district No. 35, two for curbing and guttering in district No. 35, one for paving in district No. 234, two for curbing and guttering in district No. 234, and two for sidewalks,--all in the city of Omaha. In respect to the two items for paving in district No. 35, the assessments were in proportion to “foot front”; and it was provided by statute that it was the duty of the council to sit as a board of equalization, after giving notice of the session, which should continue for not less than two days. The notice was to be published a stated number of days. The record before us discloses that there was an offer of the proof of publication of the notice, and that it was marked “Exhibit 31.” A reference to the exhibit named discloses a copy of a notice, but no proof of publication; and, according to the record, there was a failure to show the requisite notice. The council or board of equalization had no jurisdiction, and the assessment was void. Wakeley v. City of Omaha, 57 Neb. ___, 78 N. W. 511;Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524. The notice which it is claimed was given--of which, as we have seen, there was a failure of proof of service--contained a statement that the council would be in session as a board of equalization “in the office of the city clerk on Thursday and Friday, July 15 and 16, 1886, between the hours of 9 a. m. and 12 m., and 1 p. m. and 5 p. m.” In the record of the proceedings of the council or board there appears a statement that a “recess” or adjournment was had to Saturday, July 17, 1886, at 8 o'clock p. m.; and no notice of the adjourned meeting was given. It was at the latter session that the assessments were made. It was a questionable proceeding, if not fatal (though we do not decide so), to adjourn over to the evening or nighttime of the day succeeding the last one designated in the notice. A somewhat similar adjournment of a county board, in session as a board of equalization, was held unwarranted in Sioux City & P. R. Co. v. Washington Co., 3 Neb. 30. The notice fixed the place of meeting at the “office...