Hutchinson v. City of Omaha

• Decision Date: 22 September 1897
• Citation: 52 Neb. 345,72 N.W. 218
• Parties: HUTCHINSON ET AL. v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

52 Neb. 345

72 N.W. 218

HUTCHINSON ET AL.

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

Sept. 22, 1897.

Syllabus by the Court.

1. The charter of metropolitan cities, as it existed in 1890, granted to the mayor and council power to grade “any street” or part of street, one-half the expense to be paid from the general fund and one-half by local assessment upon property abutting or adjacent and specially benefited. When owners of abutting property representing three-fifths of the frontage petitioned therefor, the mayor and council were required to grade, and in that case the whole expense was defrayed by local assessment on abutting property. Held, that under the latter provision two or more streets could not be united in a single improvement, and the total expense distributed against the property abutting on all.

2. Where power to make an improvement is derived from a petition of property owners, the work must be done according to the petition, in order to found a local assessment to pay therefor.

3. The provision of a charter that no court shall entertain a complaint that the party was authorized to make, and did not make, to the board of equalization, has no application where the tax complained of is void.

4. A board of equalization must be and remain in session ready to hear complaints during the hours advertised for its meeting.

5. A taxpayer is not estopped from resisting a tax because he has suffered the work to proceed before complaining, when in so doing he was not guilty of laches.

6. The levying of a tax is not a judicial act, and the court cannot impose as a condition of relief against a void tax the payment of such tax as would be lawful where new proceedings and a different basis of assessment are necessary to ascertain what tax is lawful.

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

Action by Carlton D. Hutchinson and others on behalf of themselves and others similarly situated against the city of Omaha and others. From a judgment for defendants, plaintiffs appeal. Reversed.John P. Breen, for appellants.

W. J. Connell and Lee S. Estelle, for appellees.

IRVINE, C.

This was an action by Carlton D. Hutchinson and several others on behalf of themselves and others similarly situated, the purpose of which was to obtain an injunction restraining the defendant city from collecting certain local assessments. The district court found for the defendant, and dismissed the case. Plaintiffs appeal.

There is in the city of Omaha an addition known as “Walnut Hill,” laid out in rectangular blocks, and traversed from east to west by George, Nicholas, and Nelson streets, and from north to south by Rebecca, Bird, Eureka, Dale, and Dewey streets and Institute boulevard. It appears that in 1890 property owners in Walnut Hill filed a petition with the city council, whereby they asked that the streets above named within said addition “be graded to the present established grade of said streets, as soon as practicable, and without expense to the city.” The charter provision then applicable is embraced in section 69 of an act incorporating metropolitan cities (Sess. Laws 1887, c. 10) as amended by Sess. Laws 1889, c. 14, § 69. By this section the mayor and council are given power “to open, * * * grade * * * or otherwise improve * * * in any manner they may deem proper, any street, avenue or alley within the limits of the city, * * * and to defray the cost and expense of such improvements or any of them, the mayor and council of such city shall have power and authority to levy and collect special taxes and assessments upon the lots and pieces of ground adjacent to or abutting upon the street, avenue, alley or sidewalk, thus in whole or in part opened, * * * graded * * * or otherwise improved or repaired, or which may be specially benefited by any of said improvements.” By said section it is further provided that one-half of the expense of bringing the streets to the established grade shall be paid out of the general fund of the city, but, further, that “whenever the owners of the lots abutting upon any street or alley or part thereof, within said city representing three-fifths of the feet front abutting on such part of street or alley desired to be graded shall petition the council to grade such street or alley, or part thereof without charge to the city, the mayor and council shall order the grading done and assess the cost thereof against the property abutting upon such street or alley or such part thereof so graded.” It was under this last provision that the petition was designed to operate. In pursuance of the regular course in such matters, the petition was referred to the city engineer, who certified that each of the streets except Rebecca street and Institute boulevard was represented on the petition by the requisite signatures of abutting property owners. An ordinance was then passed declaring the necessity of grading each of the streets named except Institute boulevard. There was an appraisement of damages, and the council then passed an ordinance ordering the grading of all the streets except Rebecca street and Institute boulevard. It seems that there was at the time no grade established for some of the streets named, and the council, after these proceedings, established a grade. A contract was then let for the work, and the streets named in the last ordinance were graded. From the scheme there were, however, omitted Rebecca street and Institute boulevard, which were included in the original petition, and this for the reason that the petition did not receive the signatures of the owners of three-fifths of the frontage upon those streets. The next step was to change the grade of at least one street, to wit, George street, and the work was done according to the changed grade. When the work was completed a notice was published of a meeting of the council as a board of equalization to equalize the assessment therefor. The council held, or pretended to hold, a session as a board of equalization, and adopted a scheme of taxation whereby the total cost of grading the seven streets was ascertained, this divided by the total frontage of all the streets graded, and an assessment made per front foot of all the property...