Ives v. City of Omaha

• Decision Date: 21 April 1897
• Citation: 51 Neb. 136,70 N.W. 961
• Parties: IVES ET AL. v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

51 Neb. 136

70 N.W. 961

IVES ET AL.

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

April 21, 1897.

Syllabus by the Court.

1. It is competent for a city, in the absence of constitutional or statutory restrictions upon its powers, to prescribe by ordinance the means by which it may acquire jurisdiction over a particular subject.

2. An ordinance of a city authorizing the council thereof, by resolution, to require the construction of sidewalks in front of and adjacent to any premises situated upon any street, and which provides for notice to property owners by the publication of such resolution, is not directory merely, but mandatory; and a strict compliance therewith is essential in order to confer upon the city authority to charge private property with the cost of such improvements.

3. A court of equity will restrain the sale of land in satisfaction of a void special assessment. Touzalin v. City of Omaha, 41 N. W. 796, 25 Neb. 817,Bellevue Imp. Co. v. Village of Bellevue, 58 N. W. 446, 39 Neb. 876, and Wilson v. City of Auburn, 43 N. W. 257, 27 Neb. 435, distinguished.

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

Suit by Mildred E. Ives and Virginia Druien against the city of Omaha and others. Judgment for defendants, and plaintiffs appeal. Reversed.Lake, Hamilton & Maxwell, for appellants.

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

POST, C. J.

This was an action in the district court for Douglas county by the plaintiffs, Mildred E. Ives and Virginia Druien, to restrain the sale by defendant Irey, as county treasurer, of the S. E. 1/4 of the N. W. 1/4 of section 29, township 15, range 13, in said county, in satisfaction of a special assessment in the sum of $436.56, for the construction of a sidewalk on the north side of Park street, adjacent to said premises, in the city of Omaha. The district court, upon a final hearing of the cause, found generally for the defendants, and entered a decree dismissing the petition of the plaintiffs, from which the latter have prosecuted an appeal to this court. The facts essential to an understanding of this controversy may be briefly stated as follows: In the month of September, 1890, a resolution was adopted by the council, and approved by the mayor of the city of Omaha, requiring the construction of a wooden sidewalk in front of the property described, within 15 days from and after the publication thereof. Said resolution was not published in any manner, although the following notice was printed in the official newspaper of the city for three days, to wit, November 23, 24, and 25, 1890: “Notice is hereby given to the owner or owners of the following real estate, in the city of Omaha, to lay and repair sidewalks in front of and adjoining their property within 15 days from the 23d of November, 1890. Such sidewalks to be constructed, laid, and repaired in accordance with plans and specifications on file in the office of the board of public works, and in accordance with resolutions adopted by the city council, to wit, * * * north side of Park street, southeast one-quarter of the northwest one-quarter of section 29, township 15, range 13, 6 feet, present grade. P. W. Birkhauser, Chairman of the Board of Public Works.” In the month of December, 1890, one Burns, claiming to act under and by virtue of a contract with the city, laid the sidewalk in question, and for which the city council subsequently levied the special assessment complained of. Said assessment was by Henry Bolln, as treasurer of the city, reported to the defendant Irey, county treasurer, by whom the property was advertised for sale, with the result stated. Plaintiffs are nonresidents, and had no actual notice of the proceedings which led to the construction of the sidewalk until some time in the month of March, 1891.

Power is by section 69 of the charter of the city of Omaha (chapter 12a, Comp St., entitled “Cities of the Metropolitan Class”) conferred upon the mayor and council to construct and repair sidewalks, and to require the construction thereof by property owners, within said city, although no method is by statute prescribed for the exercise of the power thus conferred. It must, however, be conceded that, in the absence of a special provision upon the subject, proceeding by ordinance is at least an appropriate means of giving effect to the legislative intent. The city council, acting upon the authority conferred by the provision of statute to which reference has been made, provided by ordinance as follows:

“Sec. 3. Whenever the city council may deem it expedient, it may by resolution require the sidewalk in front of or adjacent to any premises along any street within the city to be constructed, widened or repaired. * * * The board of public works is hereby directed to take the necessary steps to have the said work done by the owners in conformity to such plans and specifications, rules and regulations as said board may require, and in the event of the failure of the owners to have such walks built, to cause the same to be laid by the contractor who shall have been awarded the contract for the construction of sidewalks. * * *

Sec. 4. Said board shall cause a copy of said resolution to be published in the official paper of the city three times a week for one week, * * * and such publication shall be deemed good and sufficient notice to the owner or owners of the property in front of, abutting on, or adjacent to which such sidewalk is to be constructed, widened or repaired. * * *

Sec. 5. All sidewalks shall be constructed, widened or repaired by the owner or owners of the property in front of, abutting on, or adjacent to which the same are ordered, in the manner required by this ordinance, within fifteen days after the completion of the publication of said resolution, * * * as above required.

Sec. 6. If at the expiration of fifteen days from the publication of said notice, as above required, the sidewalk ordered constructed, widened or repaired shall not be constructed, widened or repaired, as by...