Hanscom v. City of Omaha

• Decision Date: 04 January 1881
• Citation: 7 N.W. 739,11 Neb. 37
• Parties: A. J. HANSCOM, APPELLANT, v. THE CITY OF OMAHA, APPELLEE
• Court: Nebraska Supreme Court

7 N.W. 739

11 Neb. 37

A. J. HANSCOM, APPELLANT, v. THE CITY OF OMAHA, APPELLEE

Supreme Court of Nebraska

January 4, 1881

APPEAL from the district court of Douglas county. Tried below before SAVAGE, J. The opinion states the case.

Judgment of the district court reversed, and the injunction granted made perpetual.

George E. Pritchett and Clinton Briggs, for appellant, cited In the matter of Albany street, 11 Wend. 149. Clapp v. City of Hartford, 35 Conn. 66. Mayor of Baltimore v. Hughes 1 Gill & Johnson, 480. Creighton v. Manson, 27 Cal. 614. Washington Avenue, 69 Penn. State, 357. The State v. Newark, 3 Dutcher, 186. Tide Water Co. v Coster, 3 C. E. Green, 519. Sharp v. Speir, 4 Hill, 76. Hill v. Higdon, 5 Ohio St. 247. Hurford v. Omaha, 4 Neb. 344. State, ex rel. Abbott v. Dodge Co., 8 Neb. 124.

G. W. Ambrose and John C. Cowin, for appellee, cited Cooley on Taxation, 110, 449. Turner v. Althaus, 6 Neb. 54. People v. Brooklyn, 4 N.Y. 419. Shaw v. Dennis, 5 Gilm., 405. Philadelphia v. Field, 58 Penn. State, 320. Langhorne v. Robinson, 20 Grattan, 661. Malchus v. District of Highlands, 4 Bush, 547. Challiss v. Parker, 11 Kan. 394. Hingham Turnpike v. County of Norfolk, 6 Allen, 353. Baltimore v. Hughes, 1 Gill & Johnson, 480. St. Louis v. Oeters, 36 Mo. 456.

OPINION

MAXWELL, CH. J.

In the year 1878 the city council of Omaha divided the city into two sewer districts, by a line running from the Missouri river, west along the center of Farnham street, to the western boundary of the city, and designated that portion of the city south of said line as sewer district No. 1, and that portion north as sewer district No. 2. Sewer district No. 1, as thus formed, was about two and one-half miles in length, and about one and three-fourths miles in width. A considerable portion of the territory in the south-west portion of the district has not been laid out into blocks and lots, and is not used for city purposes. A very large part of the land in the district is high and rolling, rising to one hundred feet or more above the Missouri river. South Omaha creek rises in the south-west portion of the district, and flows north-eastwardly and empties into the Missouri river, near the foot of Jones street, and furnishing natural drainage for surface water for a considerable portion of the district. The natural drainage of the south-east portion of the district is directly into the Missouri river, and it is impossible from the intervening high ground to connect drains from that portion of the district with South Omaha creek. The natural drainage of the north-western portion of the district is directly into district No. 2. Contracts were let by the city authorities, and portions of two main sewers have now been constructed, one of which virtually follows the channel of South Omaha creek, and the other of a small stream that empties into said creek. No lateral sewers have yet been constructed, and the sewer, so far as the testimony discloses, is not yet used for sewerage purposes. The warrants drawn on the sewer fund exceed the sum of $ 30,000, and the entire cost will greatly exceed that sum.

A special tax of three per cent was enjoined, for reasons which need not be noticed, whereupon the following ordinance was passed:

"Be it ordained by the city council of the city of Omaha:

"SECTION 1. That ordinance No. 381, entitled, 'An ordinance making a levy to pay part construction of sewers in sewer district No. one in the city of Omaha,' approved November 2, A.D. 1878, be and the same is hereby amended to read as follows:

"That a special tax of two and one-half cents on each dollar be and the same is hereby levied upon all the real estate lying and being within sewerage district No. one, in the city of Omaha, Douglas county, state of Nebraska, and according to the valuation of such real estate as fixed by the last regular assessment made prior to the date hereof, to pay for the construction of sewers constructed in said sewerage district, it being hereby adjudged and determined that all of the said (real) estate is equally benefited by said sewers, the cost of which is to be defrayed by the proceeds arising from the foregoing special tax.

"SEC. 2. That the proceeds arising from said special tax shall constitute a fund to be designated and known as the sewerage fund of sewerage district No. one, and shall be used exclusively to pay off and discharge the indebtedness arising from the construction of sewers in said sewerage district," etc.

This action was brought to enjoin the collection of this tax, upon the ground substantially that it is not authorized by law. On the trial of the case in the district court, judgment was rendered in favor of the defendant. The plaintiffs appeal to this court.

The twenty-sixth paragraph of section 15 of "An act to incorporate cities of the first class," approved March 28, 1873 (Gen. Stat., 115), gives the mayor and council of each city governed by its provisions, power "to lay off the city into suitable sewer districts for the purpose of establishing a system of sewerage and drainage; to provide such system and regulate the construction and repairs and use of sewers and drains, and of all proper house connections and branches, and provide penalties for any destruction of or injury to any sewer or part thereof."

The eleventh subdivision of section 15 (Gen. Stat. 114) gives them authority "to establish, alter, and change the channels of streams and water courses within the city, and bridge the same. Provided, that any such improvement costing in the aggregate a sum greater than five thousand dollars shall not be authorized until the ordinance providing therefor shall be first submitted to, and ratified by a majority of the legal voters of such city voting thereon."

Sec. 52 provides that "special taxes may be levied by the mayor and council for the purpose of constructing sewers or drains within the city. Such taxes shall be levied upon all the real estate lying and being within the sewerage district in which such sewer or drain may be situated, and according to the valuation of such real estate as fixed by the last named regular assessment made prior to such levy, and all taxes or assessments for sewerage purposes shall be collected in the same manner as other special assessments are, and shall be subject to the same penalty.

Sec. 6, Art. IX, of the constitution of 1875, provides that "the legislature may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessments, or by special taxation of property benefited. For all other corporate purposes all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same."

The words "by special assessment or by special taxation of the property benefited," refer to, and mean the same thing viz.: That special assessments may be made upon property to the extent of the benefits received by it. Taxation by special assessments differs from general taxation in this, that they can be imposed only to the extent of the special benefits received, while the benefits which the tax payer receives in return for general taxation are the enforcement of the laws, protection to life and property, and such other benefits as are shared by the public at large. The principle which underlies special assessments is, that the value of the property is enhanced to an amount at least equal to the assessment. This principle cannot be departed from without taking private property for public use. As was said in the case of Tidewater Co. v. Coster, 3 C.E. Gr 527, 528, "where lands are improved by legislative action on the ground of public utility, the cost of such improvement, it has frequently been held, may, to a certain degree, be imposed on the parties who, in consequence of owning the lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system it is not considered that the property of the individual or any part of it is taken from him for the public use, because he is compensated in the enhanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burden, when that which is received by the land owner is equal or superior in value to the sum exacted; for if the sum exacted be in excess, then to that extent, most incontestably, private property is assumed by the public. ...