Harmon v. City of Omaha

• Decision Date: 22 December 1897
• Citation: 53 Neb. 164,73 N.W. 671
• Parties: HARMON ET AL. v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

53 Neb. 164

73 N.W. 671

HARMON ET AL.

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

Dec. 22, 1897.

Syllabus by the Court.

1. “A party who is not guilty of laches may invoke the aid of a court of equity to restrain the collection of a void tax or assessment.” Morris v. Merrell, 62 N. W. 865, 44 Neb. 423, followed.

2. Where special taxes or assessments against property to pay expenses of improving the streets of a city are void, they cannot be enforced solely on the ground of the benefits of the improvements to the owners of the abutting lots or lands.

Appeal from district court, Douglas county; Keysor, Judge.

Action by Cordelia W. Harmon, administratrix, and another, against the city of Omaha and another, to enjoin the collection of certain taxes. From a judgment for plaintiffs, defendants appeal. Affirmed.W. J. Connell and E. J. Cornish, for appellants.

Charles S. Elgutter, for appellees.

HARRISON, J.

On June 1, 1892, the council of the city of Omaha passed an ordinance by which there was created improvement district No. 470 in said city. The district included a portion of Ninth street from the point of intersection of it and Pacific street, and extending north to the alley, or to where, in fact, it abutted the tracks and grounds of the Union Pacific and Burlington Railroads. On July 2, 1892, the portion of Ninth street to which we have just referred was, by ordinance then enacted, ordered paved with Colorado sandstone, and between the 10th of May and 10th of June, 1893, the work of paving was done under contract with the city authorities. Subsequently, and during the year 1893, a special assessment and levy of taxes were made on the properties included in the district to raise the funds to pay for the paving and curbing. This action was instituted in the district court of Douglas county by the appellees, property owners in said district, to enjoin the collection of the taxes, and from a decree in their favor the city and its officers necessarily involved in the action have appealed to this court.

It was alleged in the petition filed for appellees in the district court: “That no petition praying for said improvement aforesaid, signed by the owners of the lots or land abutting upon said street within said improvement district, and representing a majority of the feet frontage thereon, as provided by the laws of the state of Nebraska governing cities of the metropolitan class, has ever been presented or submitted to the city council of the city of Omaha. * * * And plaintiffs further allege that the said mayor and city council were without jurisdiction, and without power or authority of any kind, to levy on the property of these plaintiffs, described as aforesaid, the alleged taxes for paving and curbing of said Ninth street, levied as aforesaid, and that said alleged taxes were null and void.” The answer of appellants denied the allegations of the portion of the petition which we have quoted, and alleged that: “These defendants, further answering said petition, allege that said paving in said district was done with the knowledge and consent, and by the permission and authority, of the owners of the lots and real estate in said paving district, and without objection or protest on the part of said plaintiffs, or either of them, and without objection on the part of any owner of any lot or real estate in said paving district. The said defendants further say that the paving done in said district specially benefited said lots to the full amount, and more than the amount, of the said special assessment levied thereon to cover the cost of said paving.” To this answer, so far as is disclosed by the record, there was no reply.

The decree rendered in the cause, after the statement that the cause “came on to be heard on the petition, answer, and the evidence and argument of counsel,” continues as follows: “That no petition of the owners of the lots and lands abutting upon that part of Ninth street within said improvement district No. 470, representing a majority of the feet frontage, was ever made, presented, or filed with the mayor or city council, asking or requesting to have said street improvement district created, or said part of Ninth street in said district paved. The court further finds that said plaintiffs had personal knowledge of the doing of said work of paving at and before the commencement thereof, and while the same was being done, and made no objection or protest to said paving being done to the authorities of said city by written protest or otherwise. The court further finds that the only protest ever made to or filed with the city authorities of the city of Omaha relating to said paving were the protests filed with the city council sitting as a board of equalization, of which copies have been introduced in evidence. The court further finds as a matter of law that, by reason of no petition having been made or filed by the owners of the lots and real estate abutting upon said part of Ninth street in said district, representing a majority of the feet front thereon, asking or petitioning to have said paving none, the said defendant the city of Omaha, by its mayor and council, was without jurisdiction to do said paving, or to levy a special tax or assessment on said lots or real estate to cover the cost of said paving, and that for such reason the said special taxes in plaintiffs' petition described are null and void.” It was adjudged that the assessments and taxes were null and void, and appellants were perpetually enjoined from their enforcement or any attempt at their collection.

Counsel for appellants, in the brief filed, state: “We have * * * in this case but one question, to wit: Can a property owner, who knows that a city of the metropolitan class is about to pave a street in front of his premises, stand by while said improvement is being constructed, making no complaint or protest of any kind to the city until his property is about to be assessed to raise funds to pay the costs of said improvement, and then for the first time, with full knowledge of all the proceedings from the beginning, admitting that the special benefits to his property by reason of said improvement equal or exceed the amount assessed against his property, obtain a decree in a court of equity enjoining the collection of said taxes, and canceling the same, without offering to do equity by paying an amount equal to the special benefits received, not to exceed the amount assessed against his property?” In regard to the character or quality of the assessment and levies of taxes,--a question which arises as a part or element of the main question,--the authority to make such street improvements, and levy the taxes on abutting lots or lands to pay the expenses of the same, was conferred in section 69, c. 12a, Comp. St. 1893,--one of the sections of the act passed for the government of cities of the metropolitan class,--and prior to its exercise by the officers of the city there must have been presented to them a petition by the owners of the majority of the feet frontage of the lots or land abutting on the street, praying or requesting that the improvements be made. Without the petition, the officers could not move in the premises, could not order the improvements, and levy taxes on the abutting properties for the payment of the whole of the expenses. Von Steen v. City of Beatrice, 36 Neb. 421, 54 N. W. 677;State v. Birkhauser, 37 Neb. 521, 56 N. W. 303. There was no such a petition asking for the improvements in district 470 on the portion of Ninth street included in such district; hence the officers were not warranted in the exercise of the authority, the order for the improvements was illegal, and the levy of taxes based thereon was void. It is a familiar rule that ...