Hutchinson v. City of Omaha

• Decision Date: 22 September 1897
• Docket Number: 7306
• Citation: 72 N.W. 218,52 Neb. 345
• Parties: CARLTON D. HUTCHINSON ET AL., APPELLANTS, v. CITY OF OMAHA ET AL., APPELLEES
• Court: Nebraska Supreme Court

72 N.W. 218

52 Neb. 345

CARLTON D. HUTCHINSON ET AL., APPELLANTS, v. CITY OF OMAHA ET AL., APPELLEES

No. 7306

Supreme Court of Nebraska

September 22, 1897

APPEAL from the district court of Douglas county. Heard below before WALTON, J. Reversed. Decree for plaintiffs.

Reversed. Decree for plaintiffs.

John P Breen, for appellants.

W. J Connell and Lee S. Estelle, contra.

IRVINE C. HARRISON, J., not sitting.

OPINION

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 defendants 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 (Session Laws, 1887, ch. 10), as amended by Session Laws, 1889, ch. 13, sec. 14. 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 costs and expense of such improvements or any of them, the may or 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 abutting on the streets graded. It is this assessment of which the plaintiffs complain.

It will be observed that the scheme of the petition was a joint grading of all nine streets; that the city, instead of following the petition, treated it in the first operations as a petition for nine different improvements and as sufficient only with regard to seven; that the work was not carried out in accordance with the petition by grading "to the present established grade," but some streets were graded according to grades thereafter established, and one, at least, was graded to a new grade, the change being made after the petition was filed. Then the city abandoned its theory of each street constituting a separate improvement and treated the seven streets graded as a single improvement, distributing the cost among all the abutting property owners on the seven streets and not charging against those on each street simply the cost of grading that street.

We think this tax was in its inception, in its ground-work, and throughout, absolutely void. It is familiar law that in order to sustain an assessment of this character the record must show affirmatively a compliance with all the conditions essential to the valid exercise of the taxing power. (Smith v. City of Omaha, 49 Neb. 883, 69 N.W. 402.) It is no less familiar...